Drescher & Cheslow, P.A.https://drescher-cheslow.com
Experience & ProfessionalismThu, 14 Mar 2019 14:08:11 +0000en-UShourly1Violation of the N.J. Stalking Statutehttps://drescher-cheslow.com/violation-of-the-n-j-stalking-statute/
Thu, 14 Mar 2019 14:07:21 +0000https://drescher-cheslow.com/?p=1354VIOLATION OF THE N.J. STALKING STATUTE CAN LEAD TO THE ISSUANCE OF A DOMESTIC VIOLENCE RESTRAINING ORDER In L.G v. T.G., decided March 12, 2019 by the Appellate Division of the New Jersey Superior Court that a New Jersey court has the power to issue a domestic violence restraining order whenever there is such behavior […]

]]>VIOLATION OF THE N.J. STALKING STATUTE CAN LEAD TO THE ISSUANCE OF A DOMESTIC VIOLENCE RESTRAINING ORDER

In L.G v. T.G., decided March 12, 2019 by the Appellate Division of the New Jersey Superior Court that a New Jersey court has the power to issue a domestic violence restraining order whenever there is such behavior by one party towards the other that constitutes extremely annoying behavior or repetitively annoying behavior without physical violence having occurred.

In this case, the trial judge, after hearing that a husband had engaged his father to hire a private detective to place a GPS tracking device on his wife’s car, so he could follow her whereabouts continuously while she was using the car, found the husband had violated the stalking statute which is included as one of the reasons a domestic violence restraining order can be issued. The investigating officer of the Howell Township police department testified that L.G. appeared “concerned, nervous and scared,” and that T.G. refused to answer questions about the GPS. After further investigation, the police officer testified there were eighty-eight successful logins after the device was installed, which had “real time GPS tracking” via a wireless network. L.G. also testified that her husband questioned her about where she had been and told her he was going to find out more about where she went. There had been one prior incident of domestic violence between the parties but on that prior occasion, L.G. chose to dismiss the temporary restraining order she had obtained to see if the marriage could be reconciled.

The stalking statute, N.J.S.A. 2C:12-10(b), was implemented “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked.” H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003) (quoting State v. Saunders, 302 N.J. Super. 509, 520 (App. Div. 1997)). Therefore, “acts of actual violence are not required to support a finding of domestic violence.” Granting a final restraining order to a victim of stalking furthers the domestic violence law’s goal of assuring the victims of domestic violence the maximum protection from abuse the law can provide.

The Appellate Court said “T.G.’s actions were clearly directed at L.G. We are not persuaded by his argument that he didn’t place the device on L.G.’s vehicle, but authorized his father to employ a private investigator to do so. Indirectly and through a third-party, T.G. had L.G. followed, monitored, observed, and surveilled, by using a device in violation of N.J.S.A. 2C:12-10(a). The evidence amply supports the judge’s finding that L.G. was monitored over a sufficient period of time, establishing a repeated course of conduct within the meaning of the statute. We see no basis to disturb the judge’s findings as to stalking.”

The court pointed out that the trial judge found the information obtained through the GPS led to T.G. intentionally harassing L.G., and, “to intimidate her, to try to trap her.” Thus, they had “no difficulty in affirming the judge’s finding that T.G. committed the predicate act of harassment by using information gathered by the GPS.”

The court also found that the trial judge reviewed the factors needed to determine if L.G. required the protection of a final restraining order to remove her from immediate danger and to prevent further abuse. These factors are:1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;2) The existence of immediate danger to person or property;3) The financial circumstances of the plaintiff and defendant;4) The best interests of the victim and any child;5) In determining custody and parenting time the protection of the victim’s safety; and6) The existence of a verifiable order of protection from another jurisdiction.[N.J.S.A. 2C:25-29(a)(1)-(a)(6).] The court found the trial judge properly considered the evidence presented to him and that he had relied upon sufficient credible evidence in the record to find “regular serious abuse” between the parties and appropriately considered L.G. to be a victim of past domestic abuse. Therefore, the Appellate court upheld the issuance of the final restraining order against T.G.

While unpublished, and therefore not considered to be binding on other courts, this decision establishes an important concept in the use of technology to spy on one’s spouse or significant other, that is, that such spying can be considered in violation of the criminal statute barring stalking and can support issuance of a restraining order with serious consequences to the perpetrator.

]]>Even Famous Actors Need Estate Planning Attorneyshttps://drescher-cheslow.com/even-famous-actors-need-estate-planning-attorneys/
Mon, 11 Mar 2019 13:27:22 +0000https://drescher-cheslow.com/?p=1352When Luke Perry, whose full name was Coy Luther Perry III, died on March 4, 2019, he was surrounded by family and loved ones. Tragically, the actor — who rose to fame playing a teenage heart-throb on Beverly Hills 90210 — died from a condition that almost everyone thinks of as one that only strikes […]

]]>When Luke Perry, whose full name was Coy Luther Perry III, died on March 4, 2019, he was surrounded by family and loved ones. Tragically, the actor — who rose to fame playing a teenage heart-throb on Beverly Hills 90210 — died from a condition that almost everyone thinks of as one that only strikes “old” people. Fortunately, Perry’s foresight to do the proper estate planning meant that the tragedy was not made worse for his family.

At the young age of 52, Perry suffered a serious stroke and was hospitalized under heavy sedation. Five days later, his family made the decision to remove life support, after it was apparent that he would not recover, following a reported second stroke. He was surrounded by his children, 21-year-old Jack and 18-year-old Sophie, along with his fiancé, ex-wife, mother, and siblings, among others.

The decision to allow Perry to die – when he was healthy and vibrant less than a week earlier – must have been difficult. The fact that the hospital allowed Perry’s family to end life support means that Luke Perry likely had executed the proper legal documents so that his family could make the decision. Specifically, in California, those wishes generally are made in writing, through an Advance Directive or a Power of Attorney. Without a proper legal document, Luke Perry’s family may have needed an order from a probate court to terminate life support, at least if family members disagreed. That would have been a public and emotional process that would have prolonged his suffering and made it even harder for his family.

In 2015, Perry reportedly created a will, leaving everything to his two children. Starting that year, Perry became an outspoken advocate for screening for colorectal cancer. He discovered he had precancerous growths following a colonoscopy and began urging others to do the same testing. According to a family friend, it was because of this scare that Perry created a will to protect his children.

Given that Luke Perry had a reported (but unverified) net worth of around $10 million, it is likely that he created a revocable living trust in addition to a simple will. If he had only a will, then his estate will have to pass through probate court. Instead, if Perry had a trust — which is far more likely — and if his trust was properly funded (meaning that he transferred his assets into his trust prior to death), then his assets can pass onto his children without court intervention. Hopefully, Perry had the same foresight for his assets as he apparently did with his end-of-life documentation.

The one potential unresolved question is whether Luke Perry would have wanted something to go to his fiancé, therapist Wendy Madison Bauer. Since his reported will was done in 2015, Perry likely did not include Bauer at the time. If the couple had gotten married prior to his death, then Bauer would typically have received rights as a “pretermitted spouse.” These rights would not have been automatic, but instead would have depended on the wording of his will and/or trust, as well as whether or not the couple signed a prenuptial agreement that addressed inheritance rights. But, if the documents did not indicate an intent to exclude Bauer as a beneficiary, then she would have been entitled to one-third of his estate under California law if they had been married.

Because Perry died before marriage, Bauer is not entitled to inherit anything through his will or trust. This is assuming the report that his children are his only beneficiaries is accurate and no later will, trust, or amendment is found that includes Bauer. And it is still possible that Perry left money for Bauer in other ways, such as through a joint bank account or life insurance.

Luke Perry’s tragic death provides an important lesson for everyone. No one should wait until they are “old” to do their estate planning. Perry’s cancer scare in 2015 sparked him to take action, which simplified the process for his family to terminate life support and will likely make the process of dividing his estate easier. Perry certainly did not expect to die at age 52, but — at least legally — he was prepared for it.

And as Luke Perry’s situation demonstrates, it’s not just cancer that people need to be worried about. With the sudden and shocking nature of Perry’s death, awareness is being raised about the dangers of strokes in everyone, including those who are middle-aged instead of elderly. The New York Times published two insightful articles about the dangers of strokes in those even younger than age 50. Surprisingly, ten percent of all stroke victims have not yet reached their fifties. And while very few people around that age die immediately from strokes, the length and quality of life after suffering a stroke is greatly impacted, even in those as young as Perry.

Hopefully Luke Perry’s death can raise awareness not only of stroke prevention and the importance of colorectal screening, but also serve as a reminder that everyone should follow his lead and not procrastinate when it comes to estate planning. Luke Perry reminds us that tragedy can strike anyone and if that happens, we all want our loved ones to be protected.

]]>Divorce and Estate Planninghttps://drescher-cheslow.com/divorce-and-estate-planning/
Fri, 08 Feb 2019 14:17:06 +0000https://drescher-cheslow.com/?p=1343We strongly recommend that if you are getting a divorce that you have a new last will and testament, power of attorney and advanced directive for health care decisions prepared by an attorney. Although a divorce might automatically revoke certain important legal documents under New Jersey law such as an Advanced Health Care Directive, you […]

]]>We strongly recommend that if you are getting a divorce that you have a new last will and testament, power of attorney and advanced directive for health care decisions prepared by an attorney. Although a divorce might automatically revoke certain important legal documents under New Jersey law such as an Advanced Health Care Directive, you still need to identify new individuals to carry out your important intentions if your spouse was named your health care agent under your existing advanced directive. The agent named by you in a general durable power of attorney, which most attorneys recommend that you have in place when preparing your estate planning documents, is not automatically revoked under New Jersey law by virtue of a divorce. If you became incapacitated, would you want your former spouse, by virtue of him or her being named as your agent under a general durable power of attorney, to be in control of your financial affairs?

As a divorce involves the reorganization of a family unit, it also requires an adjustment to your estate plan. A new Will, Power of Attorney and Advanced Health Care Directive gives you the peace of mind that your wishes will be met.

My firm, Drescher & Cheslow, P.A., is well-versed not only in divorce and family law but in estate planning. We would be happy to meet with you to review your estate plan.

]]>How an Elder Law Attorney Can Help Youhttps://drescher-cheslow.com/elder-law-attorney/
Mon, 28 Jan 2019 14:08:19 +0000https://drescher-cheslow.com/?p=1331Elder law attorneys are there to help their clients plan for the future. Unfortunately, many illnesses can change physical and mental health during the later years. In many cases, people may become unable to make their own decisions about care or in the case of adults with special needs their parents may become unable to […]

]]>Elder law attorneys are there to help their clients plan for the future. Unfortunately, many illnesses can change physical and mental health during the later years. In many cases, people may become unable to make their own decisions about care or in the case of adults with special needs their parents may become unable to continue caring for them. The elder law attorney is there to make sure that if or when this happens, the wishes of the client are carried out. They can help with advance directives for healthcare, guardianship paperwork for making sure a trusted caregiver can make healthcare decisions, and conservatorship for making sure a trusted person can manage affairs such as finances. Planning for incapacity or long-term care is very important. An elder law attorney is an invaluable resource for helping with nursing homes, Medicaid and Medicare, and Social Security. They are there to assist and protect the rights of their clients.

In addition, elder law attorneys help veterans to obtain the benefits they are entitled to. They can fight for the veteran and help guide them on benefits that are available. The elder law attorney can also help veterans, elders, and special needs people and their families to fight abuse and fraud. All of these groups are targets for scams and elders and adults with special needs at times find themselves in situations where they are abused or exploited. It is important for the clients and their families to know they can turn to an elder law attorney for help in finding justice in these situations. Finally, an elder law attorney can be an excellent mediator in helping to sort out complicated family and financial situations.

Our office handles elder law cases and would be happy to set up a time to discuss your particular situation and how we can help.

]]>The ABLE Act and how it Helps Those with Special Needshttps://drescher-cheslow.com/able-act/
Mon, 28 Jan 2019 14:03:14 +0000https://drescher-cheslow.com/?p=1329The Achieving a Better Life Experience (ABLE) Act was signed into law in December of 2014. The purpose of the Act was to provide individuals and families the ability to finance disability needs tax-free. The savings vehicle provided by the ABLE Act is similar to the 529 education savings plan. The ABLE Act allows families […]

]]>The Achieving a Better Life Experience (ABLE) Act was signed into law in December of 2014. The purpose of the Act was to provide individuals and families the ability to finance disability needs tax-free. The savings vehicle provided by the ABLE Act is similar to the 529 education savings plan. The ABLE Act allows families to save up to $100,000 in a special account to pay for disability-related care without risking eligibility for benefits such as Medicaid or Supplemental Security Income (SSI) because these assets aren’t counted towards the need-based asset thresholds for these programs. To be eligible for an ABLE account, the beneficiary must be someone who had an onset of a disability before age 26, and either receives Social Security Disability Insurance (SSDI) or files a disability certification under IRS rules. (The beneficiary doesn’t have to be under age 26 at the time the ABLE account is set up, but rather have had the disability onset before 26 years of age.)

The expenses which are exempted from taxation under an ABLE account include expenses for education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, and funeral and burial expenses. Also, states may choose to approve other expenses under their own regulations.

What happens if my account value exceeds $100,000?

If the assets in an ABLE account exceed $100,000, then the beneficiary’s SSI benefit payments will be placed in suspension until the account value returns to below the $100,000 threshold. When the account value returns to under $100,000, the SSI benefit payments will automatically resume with no need for re-application.

The assets held in an ABLE account will not affect eligibility for Medicaid even if they increase above $100,000.

How does an ABLE account work?

Any earnings made in the account from contributions will accumulate tax free at the federal level if the earnings are used to pay for disability-related expenses. This may also be true at the state level, depending on which state one lives in. If the funds are used for non-qualified expenses, then the earnings portion of the withdrawal will be taxed at one’s normal rate and subject to a 10% federal penalty. There are no federal tax breaks for contributions made into the account, only the earnings are tax-deferred. However, individual states have the option to provide tax incentives for contributions. In the event that the beneficiary of the account passes away, the state-run Medicaid agency may have the right to claim reimbursement up to the value of the Medicaid services provided to the beneficiary, depending upon state estate recovery laws.

Is the ABLE account program available in all states?

Currently, the ABLE account program is available in 35 states and the District of Columbia. However, if one lives in a state that doesn’t offer an ABLE account, he or she can still take part in this program. Anyone may enroll in another state’s ABLE account program (even if one’s home state offers an ABLE program) as long as that other state stipulates they are accepting out-of-state resident applications.

Are there limits on how much I can contribute to an ABLE account?

Currently, the total annual contributions that are allowed into an ABLE account is $15,000, which includes contributions made by family and friends. This amount may be adjusted periodically to account for inflation. The total contribution limit for an ABLE account differs by state, but remember, if the value exceeds $100,000, SSI payments will be suspended.

The ABLE Act can be a life-changing savings vehicle for those with special needs and their families. If you would like to learn more, or have questions about anything you have read, please do not hesitate to contact our office.

]]>Come See Us: It’s Not Too Latehttps://drescher-cheslow.com/come-see-us-its-not-too-late/
Fri, 18 Jan 2019 14:44:24 +0000https://drescher-cheslow.com/?p=1325Saul was getting on in years, and he missed his wife who had recently died. So he sold the home, put the $100,000.00 in the bank, and moved into his son Arthur’s home. Every day Saul started his day as always, and he felt healthy as a horse. So he really didn’t see the need […]

]]>Saul was getting on in years, and he missed his wife who had recently died. So he sold the home, put the $100,000.00 in the bank, and moved into his son Arthur’s home. Every day Saul started his day as always, and he felt healthy as a horse. So he really didn’t see the need to do any financial planning.

But one day Saul fell and broke his hip. Complications set in, and he needed long-term nursing care. He did not qualify for Medicaid benefits, to pay for the nursing home, because he owned far more than the $2,000.00-limit before Medicaid would pay. Now it was too late to do the kind of proactive planning that would have saved most or all of Saul’s money. Would everything have to go to the nursing home?

Fortunately Saul and Arthur went straight to a good elder law attorney. That lawyer proposed that Saul gift half the $100,000.00 to a special kind of trust. This gift would result in a “penalty period,” which the Medicaid rules impose when an applicant has given away assets during the five years before filing a Medicaid application. During the penalty period Saul would have to pay for his nursing-home care. To do that, he could use the other half of the proceeds from the sale of his house to buy a Medicaid-compliant annuity. The annuity would provide an income stream to pay for the nursing home until the end of the penalty period. When that was over, Saul would be left with only $2,000.00, and Medicaid would begin paying for Saul’s care at that point.

]]>Power of Attorney Misconceptionshttps://drescher-cheslow.com/power-of-attorney-misconceptions/
Thu, 17 Jan 2019 17:04:37 +0000https://drescher-cheslow.com/?p=1321A durable power of attorney (POA) is one of the most important estate planning documents you can have. It allows someone who you appoint (your agent) to make decisions on your behalf in the event you become incapacitated. It is also one of the most misunderstood. This article will break down some of the common […]

]]>A durable power of attorney (POA) is one of the most important estate planning documents you can have. It allows someone who you appoint (your agent) to make decisions on your behalf in the event you become incapacitated.

It is also one of the most misunderstood. This article will break down some of the common misconceptions regarding POAs and help you understand what you need to create a valid POA.

Misconception: Technology is so great now, there is no need to speak with an attorney, I can just create my own POA on line.

Truth: POAs are not one-size-fits-all. Each person’s situation is unique. If you use a cookie cutter program it may not cover specific transactions. In order to conduct many financial transactions specific language must be used to grant proper authority. The attorneys at Drescher & Cheslow create these documents regularly which gives them valuable experience in unique situations and can make sure you have all your bases covered.

Misconception: POAs are one-and-done documents. Once I create it I will never have to touch it again.

Truth: POAs are documents that should be updated regularly. Laws change and if you have not regularly updated your documents you may find out too late that your POA is not valid. Further, some financial institutions may not accept a POA that was not updated in the last few years for fear of a lawsuit.

Misconception: I shouldn’t make my POA active until I become incompetent (a “springing” POA).

Truth: While the timing of granting agency through a POA is a matter of personal preference an immediately effective POA should be considered. A springing POA usually requires a finding of incompetency by at least one doctor and sometimes two. However, there may be an emergency where a doctor will not sign off that you are incompetent. Making your POA effective immediately removes the need for a doctor to declare you incompetent.

Misconception: I don’t need a POA, I’m young and healthy, plus I don’t have many assets.

Truth: Every single person over the age of 18 should have a POA. You never know when something catastrophic may happen. You need to have a plan in place to take care of you in the event you become incapacitated unexpectedly. If you do not have these documents in place then you have no control who will be making decisions on your behalf. It can be expensive and time consuming for your loved ones to go through the court to have someone appointed by a judge.

POAs are absolutely essential documents that everyone should have. It is important to consult an elder law attorney who can examine your unique situation to create your POA and to keep it updated. Please do not hesitate to contact our office if you would like to speak with an attorney about creating your own POA.

]]>Using Alternative Dispute Resolution to Resolve Your Family Law Case Out of Courthttps://drescher-cheslow.com/alternative-dispute-resolution/
Thu, 17 Jan 2019 16:30:32 +0000https://drescher-cheslow.com/?p=1315More and more family law litigants are turning to alternative dispute resolution processes to resolve their disputes. Among these processes are the collaborative process where both parties hire attorneys and all decisions are made together without involvement of a Judge; mediation, in which the parties, with or without attorneys, attend sessions with a qualified family […]

]]>More and more family law litigants are turning to alternative dispute resolution processes to resolve their disputes. Among these processes are the collaborative process where both parties hire attorneys and all decisions are made together without involvement of a Judge; mediation, in which the parties, with or without attorneys, attend sessions with a qualified family law mediator to try to reach agreement on their issues; and arbitration, in which the parties agree to select a qualified arbitrator who will conduct a full hearing in which testimony is offered and other evidence is presented after which a binding decision will be issued regarding the issues presented to the arbitrator. All of these alternative processes are usually cheaper than the litigation alternative in our courts and often provide a more expeditious method of resolving disputes.

Recent decisions by the New Jersey courts make it clear that when parties attend mediation and come to an agreement, that agreement must be put into a written document and signed by the parties (and their attorneys, if attorneys are involved) in order to be binding on the parties. Many mediators will draft a Memorandum of Understanding (“MOU”) but will not have the parties sign it at the conclusion of the final mediation session. This gives the parties who have attorneys time to review the MOU with their attorneys when the attorneys do not attend the mediation. However, the cases make it clear that until there is a signed agreement, oral agreements made at a mediation are not binding and the courts cannot consider them as communications made in mediation are considered confidential. So the old saying, “get it in writing”, holds true in these cases.

My office represents family law litigants and can guide you through the best alternatives for you. Whenever appropriate, we encourage the use of alternative dispute resolution processes to resolve your case.

]]>Maybe You Don’t Want to Transfer the House to Your Kids…A Medicaid Mistake.https://drescher-cheslow.com/maybe-you-dont-want-to-transfer-the-house-to-your-kidsa-medicaid-mistake/
Tue, 08 Jan 2019 19:53:43 +0000https://drescher-cheslow.com/?p=1309Mom and dad are getting older. One day dad tells mom that they may need to move to a nursing home. Concerned that the state will take all of their money, he takes certain precautionary measures; dad executes a deed transferring the home to his trusted adult children. For the average middle income family the […]

]]>Mom and dad are getting older. One day dad tells mom that they may need to move to a nursing home. Concerned that the state will take all of their money, he takes certain precautionary measures; dad executes a deed transferring the home to his trusted adult children. For the average middle income family the home is the most valuable asset.

All goes well for a little while, until mom and dad need to go into an assisted living facility. Most facilities require residents to privately pay for two years before they can apply for Medicaid. The cost is barely affordable and mom and dad’s life savings are rapidly depleted. Enter Medicaid – a government-funded program that provides health coverage for certain low-income individuals.

When applying for Medicaid, the applicant must submit, among other things, all financial information for the last five years, including disclosing any transfers of assets that were made during that five-year window. Unfortunately for mom and dad, the transfer of the family home to the children was an uncompensated transfer, also known as a “gift”, which created a penalty period that must be satisfied before Medicaid will begin covering medical expenses. During the interim, mom and dad would need to continue paying the private pay rate to the facility. The likelihood is that the adult children may need to cover the cost of the facility because mom and dad ran out of money. Worse still, rather than imposing a penalty period, mom and dad may instead be denied Medicaid coverage.

This scenario may seem farfetched but you may know friends or family members that have engaged in do-it-yourself Medicaid planning.

With the proper guidance, mom and dad may have been able to protect their home and maybe have provided for their loved ones. Instead, mom and dad lost everything and still did not receive Medicaid coverage. This happened because they did not plan ahead properly.

Don’t make the same mistake mom and dad did. Before undertaking any kind of plan that involves transferring assets, be sure to consult with a skilled elder law attorney who will help guide you and your family.

]]>3 Tips for Parents or Caretakers of Vulnerable Adultshttps://drescher-cheslow.com/3-tips-for-parents-or-caretakers-of-vulnerable-adults/
Tue, 08 Jan 2019 19:49:49 +0000https://drescher-cheslow.com/?p=13071. Legal Guardianship of a vulnerable adult can only be granted once a person turns 18 years old and has a qualifying disability. Before 18, a person has not reached the statutory age of majority. After 18, only persons who are “incapacitated” are eligible to have a judicially-appointed guardian. 2. In New Jersey, a Legal […]

]]>1. Legal Guardianship of a vulnerable adult can only be granted once a person turns 18 years old and has a qualifying disability.

Before 18, a person has not reached the statutory age of majority. After 18, only persons who are “incapacitated” are eligible to have a judicially-appointed guardian.

2. In New Jersey, a Legal Guardianship can be declared as to a person’s property, as to a person’s medical needs, or both.

Oftentimes, the same person or persons can be appointed as plenary Guardians of the Person and Estate (Property) of the incapacitated ward. But, a Legal Guardianship may be as restrictive or expansive as the Court orders.

3. Guardians usually must obtain a surety bond to serve.

Guardians appointed by the Court almost always must produce a policy of insurance known as a surety bond securing the proper performance of their duties. Getting pre-qualified for a surety bond prior to initiating a guardianship proceeding helps to ensure a smooth and pain-free process.

]]>Alternate Tax Strategies In Alimony Caseshttps://drescher-cheslow.com/alternate-alimony-tax-strategies/
Mon, 10 Dec 2018 21:10:22 +0000https://drescher-cheslow.com/?p=1300Since any alimony arrangement made after January 1, 2019, will not be deductible from the gross income of the spouse paying it nor includible in the gross income of the spouse receiving it, an alternate method of gaining a tax benefit to the paying spouse may be to have that spouse transfer 401(k) funds by […]

]]>Since any alimony arrangement made after January 1, 2019, will not be deductible from the gross income of the spouse paying it nor includible in the gross income of the spouse receiving it, an alternate method of gaining a tax benefit to the paying spouse may be to have that spouse transfer 401(k) funds by way of a qualified domestic relations order or IRA funds to the recipient spouse. These funds are tax-sheltered until accessed so the paying spouse never had and will never have to pay income tax on those funds if transferred to the recipient spouse. If the recipient spouse is in a lower income tax bracket than the paying spouse, even though she will pay taxes on the tax-sheltered funds when accessed, it will be at a lower income tax rate.

Of course, there are issues when considering the transfer of tax-sheltered funds in lieu of alimony. The recipient will gain the benefit of future gains that are tax-sheltered until they are accessed. However, if the recipient is under

59 1/2 and needs to access some or all of the funds, the recipient might be responsible to pay a 10% income tax penalty for the funds received.

Nevertheless, including tax-deferred IRA or 401(k) funds in future divorce negotiations is now an option that divorcing couples and their financial planners can use to meet their particular needs in new, creative ways.

]]>Year End (New Year) Resolutionshttps://drescher-cheslow.com/year-end-new-year-resolutions/
Fri, 16 Nov 2018 16:21:36 +0000https://drescher-cheslow.com/?p=1290Too often clients come to me when they have their backs against the wall faced with a difficult situation. Whether it is mom or dad, your husband or wife, or your best friend, people tend to not look to the horizon when it comes to long-term care planning. Spend a few hours of your time […]

]]>Too often clients come to me when they have their backs against the wall faced with a difficult situation. Whether it is mom or dad, your husband or wife, or your best friend, people tend to not look to the horizon when it comes to long-term care planning. Spend a few hours of your time being proactive and you may find that you can prevent disaster, protect your hard-earned nest egg, and provide for your loved ones. With that in mind, here are a few ways you can be smart and plan ahead for 2019:

1) When is the last time you updated your Last Will and Testament? Better still, do you even have an estate plan?

2) Check your bank accounts and investment funds to make sure that you have verified your beneficiary designations.

3) Set a meeting with your insurance professional and make sure that you are properly insured.

4) Call your accountant and find out how the new tax laws may impact your 2018 tax return. That big tax refund you were counting on may not be quite so big after all.

Life is never static and things change. Do not make the mistake of thinking that your existing plan still accomplishes your goals. Nobody can predict what tomorrow will bring, so TAKE ACTION NOW and start the New Year off on the right foot.

]]>Department of Veterans Affairshttps://drescher-cheslow.com/department-of-veterans-affairs/
Fri, 21 Sep 2018 18:41:30 +0000https://drescher-cheslow.com/?p=1283Over the last few days there has been a sea change in the world of veteran pension planning. The Department of Veterans Affairs published their updated proposed rules which will go into effect October 18th. I am bringing this to your attention because there is a unique opportunity for any clients that might benefit from […]

]]>Over the last few days there has been a sea change in the world of veteran pension planning. The Department of Veterans Affairs published their updated proposed rules which will go into effect October 18th. I am bringing this to your attention because there is a unique opportunity for any clients that might benefit from proactive planning. In particular, under the current rules a veteran could transfer as many assets out of their name as they wanted to in order to get below the financial threshold without creating a penalty period (unlike Medicaid). Effective October 18th there will now be a 3-year penalty period for any transfers made over and above a client’s net worth of $123,600 (FYI $123,600 will be the new net worth cap unlike the current rule of $80,000). Transfers to a trust will be penalized the same as an outright transfer to an individual.

The unique opportunity is that the new VA rules are not retroactive. This means a veteran (or spouse) can do proactive planning before October 18th, vis-à-vis asset transfers, and then file the VA application sometime after October 18th (a day, week, year, etc.) and take advantage of BOTH the current rules AND the new rules! After the 18th VA and Medicaid planning will become a bit more congruent, but right now the bottom line is that there is a unique but brief window in time in the realm of elder law planning.

]]>Marital Settlement Agreementshttps://drescher-cheslow.com/marital-settlement-agreements/
Thu, 12 Jul 2018 16:09:42 +0000http://drescher-cheslow.com/?p=1248When Can Your Issues Be Settled? Matrimonial Settlements are very common in New Jersey. The vast majority of New Jersey divorce cases end up settling on or before the trial date assigned by the Court. In fact, it is always preferable for the parties to settle all or as many issues as they can prior […]

Matrimonial Settlements are very common in New Jersey. The vast majority of New Jersey divorce cases end up settling on or before the trial date assigned by the Court. In fact, it is always preferable for the parties to settle all or as many issues as they can prior to filing for a divorce. This will save time as well as legal fees. Ultimately, the Judge decides on the unresolved issues in the case. Increasingly, couple are employing the services of a mediator or use the collaborative divorce process, which uses a team approach to negotiating a settlement. More information about these alternatives can be found at www.njcollaborativeprofessionals.com.

Commonly referred to as an MSA or Property Settlement Agreement (PSA), a marital settlement agreement is a written agreement that covers all of the issues that should be dealt with affecting separated or divorcing parties and their children. These issues include alimony or the waiver of alimony, child support where applicable, health insurance and payment of health care costs, life insurance, and distribution of assets and debts. Once finalized, the MSA/PSA is usually attached to and becomes part of the final judgment of divorce where one is sought. The language of the agreement is crucial as the words used define the parties’ rights moving forward after the divorce.

Matrimonial Settlement Agreements When There Are No Children

If there is no alimony payable by one party to the other, and the parties agree to a waiver of the right to seek alimony even in the future, the court will question whether the person waiving alimony understands that the waiver is final. Your attorney will be sure to explain to you the ramifications of an alimony waiver.

Matrimonial Settlement Agreements When There Are Children Of The Marriage

If there are children involved the court is required to ask for a Child Support Guidelines worksheet to be attached to the agreement. However, the parties can agree to vary from those support guidelines. The guidelines are found in the appendices to the NJ Rules of Court. Unlike alimony, child support cannot be waived.

Here are the areas the court will focus on in the divorce hearing when the parties have entered into a MSA:

• Both parties understand that by entering into the Marital Settlement Agreement that they are waiving their right to a trial where they could have given testimony and presented other forms of evidence, such as financial documents, text messages, emails and photographs,
• Both parties think that the agreement is reasonable and fair.
• Both parties feel that the Marital Settlement Agreement was voluntarily executed by both parties, free from any threats.
• Neither party is under the influence of alcohol, drugs, or medication which would impair their ability to understand the proceedings in court.
• Both parties agree to be bound by the terms of the Marital Settlement Agreement.
• Both parties are satisfied with the services of their attorneys.

]]>Trump’s new tax bill and its effect on divorce in 2018https://drescher-cheslow.com/tax-on-divorce/
Mon, 15 Jan 2018 16:41:30 +0000http://drescher-cheslow.com/?p=1184The 2017 Tax Reform Act signed into law last month makes major changes to the way alimony is treated for tax purposes. It may cause many people to finalize their divorces before 12/31/18 to take advantage of the prior tax law that, in general, permitted the person paying alimony to deduct the payments from his […]

]]>The 2017 Tax Reform Act signed into law last month makes major changes to the way alimony is treated for tax purposes. It may cause many people to finalize their divorces before 12/31/18 to take advantage of the prior tax law that, in general, permitted the person paying alimony to deduct the payments from his or her gross income and required the recipient of alimony to include the receipt of the payments in his or her gross income. This article will assist you in understanding these changes.

]]>State v. Burkerthttps://drescher-cheslow.com/state-v-burkert/
Tue, 09 Jan 2018 15:16:23 +0000http://drescher-cheslow.com/?p=1180New Jersey Supreme Court Clarifies Criminal Harassment Statute In State v. Burkert, decided by the NJ Supreme Court in December, 2017 , the Court was faced with an appeal of a conviction of a petty disorderly persons offense in municipal court for a violation of the harassment statute, particularly N.J.S.A. 2C:33-4(c) which makes it an […]

In State v. Burkert, decided by the NJ Supreme Court in December, 2017 , the Court was faced with an appeal of a conviction of a petty disorderly persons offense in municipal court for a violation of the harassment statute, particularly N.J.S.A. 2C:33-4(c) which makes it an offense to have engaged in a “course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person.” In this case, the defendant downloaded a wedding photograph of his co-worker and the co-worker’s wife that was posted on social media and then placed degrading and vile dialogue on copies of the photograph. Copies of those photographs were found strewn in the employee parking garage and locker room of the Union County Jail.

The appellate division of Superior Court overturned the conviction, deciding that while the act committed by defendant was infantile, it did not rise to such a level as to violate the harassment statute. The New Jersey Supreme Court agreed, holding that “(T)o ensure that N.J.S.A. 2C:33–4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

This case will have impact when someone is accused of violating the NJ Prevention of Domestic Violence Act based upon this section of the harassment statute, which is a very commonly made accusation. In addition, it should be kept in mind that the person making the accusation in either a pretty disorderly offense case to be heard in a local municipal court or in a civil domestic violence case in the family Part of the Superior Court of New Jersey must prove that the accused, in engaging in the alarming conduct, had a purpose to harass the victim. Often that could be inferred from the circumstances, but it is still the burden of proof of the accuser (beyond a reasonable doubt in municipal court or by a preponderance of the evidence in the civil domestic violence proceeding in Family Court) to prove this “purpose to harass.”

]]>Central Jersey Divorce Lawyer: Choosing The Right Family Law Attorneyhttps://drescher-cheslow.com/central-jersey-divorce-lawyer-choosing-right-family-law-attorney/
Mon, 18 Sep 2017 20:01:11 +0000http://drescher-cheslow.com/?p=1125Drescher-Cheslow Provides Tips On How To Choose The Right Family Law Attorney In Central Jersey When it comes time to search for a Central Jersey divorce lawyer it’s important that you take your time and review your options. Not everyone has prior experience with the legal ins and outs associated with family law and the difficult […]

]]> Drescher-Cheslow Provides Tips On How To Choose The Right Family Law Attorney In Central Jersey

When it comes time to search for a Central Jersey divorce lawyer it’s important that you take your time and review your options. Not everyone has prior experience with the legal ins and outs associated with family law and the difficult process of divorce. With in Drescher Cheslow’s divorce practice we’ve heard too many instances where tons of time and money has been wasted. commonly enough, clients have gone through lawyer after lawyer trying to find the right one. Finding the right family law attorney in Central Jersey is key to what could be a faster, less-costly divorce process. Rather than a long, drawn-out emotional financial nightmare. But how will you know what to look for in a Central Jersey divorce lawyer if you don’t know what to look for? How will you know you’re investing of your money, hopes, and dreams in the right one?

How to choose the right Central Jersey divorce lawyer:

1. Be realistic

When searchinng for a Central Jersey divorce lawyer you need to realize the sole purpose of the divorce process. A divorce is a legal process with the sole purpose of dissolving your assets and resolving custody issues. While you might want them to listen to your anger, pain, frustration, and sadness, that is not their job. Your divorce attorney’s job is to represent you to the best of his or her ability in this process. They are not trained to be your therapist or coach, and they don’t want to be. Since your attorney has higher rates and the clock is always running, it’s a gross misuse of your money if this is how you’re using them. And divorce attorneys have seen it all. What seems immensely important to you might barely register for them within the scope of the legal process. So be realistic about the role of your divorce attorney, and what you can expect from them.

2. Focus on the goal.

Your ultimate goal in this process is to get divorced, and hopefully you can do so without any major depreciation of your lifestyle. Don’t let your emotions jump in and run rampant when it comes to negotiating over material things that don’t mean much to you in the big picture. If you do, your divorce will be longer, more litigious, and definitely more expensive than otherwise. Is it worth it? No. So keep your focus on getting divorced as quickly, and with as little financial damage, as possible. Ask yourself, what kind of divorce will do that for me?

3. Know what you want.

Before you rush out to hire a Central Jersey divorce lawyer, consider other alternatives to traditional litigation. If you aren’t completely entangled with children and finances, you could hire a mediator to help you negotiate the terms of your divorce. Mediation is the fastest, cheapest way to get divorced, and you might not need to hire an attorney at all! If your negotiation is more complicated, you’ll have to hire a divorce lawyer to negotiate a settlement with your spouse’s attorney. Or you could consider a collaborative divorce. A collaborative divorce is focused on negotiation with the goal of preserving a co-parenting relationship. Your last resort is a litigated trial. Typically, these are the cases when neither side will compromise. So you need to determine what type of divorce attorney you need based on your unique circumstances. Realize that any divorce attorney you talk to will try to steer you in the direction of their own specific expertise. It’s up to you to know what you want first, so you can make the right choice.

4. Identify at least three potential attorneys.

Don’t jump to hire the first Central Jersey divorce lawyer you meet. Find at least three divorce attorneys that you can interview before making your decision. You need to hire a lawyer that specializes in family law services and one that has experience in the specific type of divorce you think is best for you. The ideal attorney has the legal knowledge and experience you need, helps you understand the process, communicates and negotiates well, solves problems creatively and is experienced in your specific court system. So you need one that’s local to you. Regardless of whether or not your divorce is headed to trial, your attorney needs to be experienced with the family law judges in your jurisdiction so that he or she can advise you appropriately on legal strategy. How do you find potential attorneys? Ask you friends for personal recommendations. Ask your trust or estate lawyer for divorce attorney recommendations. Go online to the numerous websites that provide client reviews of attorneys local to you.

5. Research and interview potential attorneys.

Start with an initial phone call. Ask them about their experience and specialization within family law. Ask them about what type of client they typically represent. Ask them about their rates. Most divorce lawyers charge an hourly fee and require a retainer — a fee charged in advance. Some lawyers will also negotiate fees based on anticipated settlements. Don’t waste your time (or theirs) on a meeting if they’re out of your cost range. Most divorce attorneys provide a free consult to discuss your specific situation and what their legal approach would be. So take advantage of it to gather as much legal advice as possible! Typically, the attorney you meet with will not be handling the day-to-day issues related to your case, so ask to meet the colleague or associate that would. The divorce process can also include financial experts, parenting coordinators, coach facilitators, and forensic appraisers. Find out your attorney’s access to these resources and if any would be relevant to your case, as it will affect overall cost. And even if you have no intention of heading to trial, look at the attorney’s trial record and history of success in court. This track record is an indicator of your attorney’s success in negotiation.

6. Keep an eye open for red flags.

Unfortunately, many attorneys will tell you what you want to hear just to close the deal. While this is your life, it’s a business for them. There are no guarantees in this process, so if an attorney is making promises, don’t believe it. If an attorney talks about high-profile clients or divulges confidential information based on other cases, it’s highly likely they’ll do the same to you. If during your consult they are constantly distracted by phone calls and emails and can’t focus their sole attention on you, they won’t during your divorce case. Make sure the Central Jersey divorce lawyer you choose acts according to the professional ethics of the industry and treats you with the respect and attention you deserve. This might be their business, but it’s your life!

7. Making the final choice.

The divorce attorney you choose to represent you is local, professional, knowledgeable, responsive and communicates well. This attorney is someone you trust and feel comfortable with. This attorney supports your basic philosophy toward divorce and has a style that works for you. This attorney recognizes the importance of your children and puts them first in the legal process by not making unreasonable child support demands or custody arrangements. Divorce is a highly personal and emotional process, the outcome of which can have a significant impact on your life! This is an important decision, and there are no guarantees in this process. However, if you follow these steps, you’ll find the right one — the one who listens to what you want, advises you well and has your best interest at heart.

]]>Questions for Prospective Divorce Lawyers in Central Jerseyhttps://drescher-cheslow.com/central-jersey-lawyer-questions/
Fri, 01 Sep 2017 13:31:03 +0000http://drescher-cheslow.com/?p=1106Drescher-Cheslow provides 13 questions you should be asking when looking for a divorce lawyer in Middlesex & Monmouth County The first thing to remember is that you are hiring an attorney to work with you and for you. You want an attorney who will guide you through the legal system when searching for a divorce lawyer […]

]]>Drescher-Cheslow provides 13 questions you should be asking when looking for a divorce lawyer in Middlesex & Monmouth County

The first thing to remember is that you are hiring an attorney to work with you and for you. You want an attorney who will guide you through the legal system when searching for a divorce lawyer in Middlesex & Monmouth County. but will also explain what is going on step-by-step as you go through the very confusing legal process. The saying that knowledge is power is so true in the divorce arena. You do not want to hire an attorney who will say, “Don’t worry, I will handle everything.” You want to be a partner in all of the decision-making. Worry – there is nothing wrong with a little worry as you make decisions that will impact upon your life and that of your children.

The legal system is not user-friendly and divorces can be very confusing, to say the least.

Following are some questions that you should ask an attorney at the initial consultation:

1. What percentage of your practice is devoted to family law? You want a specialist and not someone who dabbles in divorce.

2. How long have you been practicing family law? Experience is critical. It takes at least five to 10 years before an attorney really knows what he or she is doing.

3. Do you represent more men or women? You want someone who is emphatic to your situation. Judges tend to respect an attorney who represents both men and women and not someone who represents only men or women.

4. How well do you know the judges? A good attorney knows the law, a great attorney knows the judges!

5. Is there any reason why you are not comfortable representing me? You want the right fit.

6. What are your fees? This is a critical question. Discuss retainers, hourly rates and how often you will receive a billing statement.

7. If I reconcile, will I get the unused portion of my retainer back? This is an important question to ask.

8. How many divorces have you tried? While trial is a last resort, you want an attorney who is not afraid to go to court, when necessary.

9. What is your attitude regarding negotiations, mediation and staying out of court? Court should be the last resort, not the first. You do not want an attorney who creates unnecessary litigation and court appearances to charge you more!

10. Will you provide me with copies of all correspondence, pleadings and other documents? Your file should mirror that of your attorney.

11. When I call or email you, how soon can I expect a response from you? This is an emotional time in your life and prompt communication with your attorney is critical. It is reasonable to expect a response by the end of the day.

12. Approximately how long will my divorce or custody case take? This will vary depending upon the facts and complexity of your case and the court.

13. Who will be working on my case?Will it be you or members of your support staff? You need to know what to expect and how your case is being handled.

It is important to be comfortable at the initial consultation. When choosing a divorce lawyer in Middlesex County & Monmouth County it is critical that you have your questions answered. You do not want to feel rushed. Whoever is taking on your case should have your best interests at heart. Last, but not least, there are many excellent attorneys, but you should trust your gut as to what your comfort zone is before deciding to hire a particular attorney. Don’t hesitate to talk to two or three before making your decision.

Middlesex County Divorce Lawyer

]]>Family Law in Central Jersey, Hiring a Divorce Lawyerhttps://drescher-cheslow.com/family-law-central-jersey-hiring-divorce-lawyer/
Wed, 14 Jun 2017 15:00:00 +0000http://drescher-cheslow.com/?p=1073When most people think of family law, they think about divorce and the legal complications it brings. But, at Drescher & Cheslow, our family law practice is much more than divorce. Along with divorce, we have helped hundreds of families in Central Jersey and the New Jersey area with child support, alimony, equitable distribution of […]

]]>When most people think of family law, they think about divorce and the legal complications it brings. But, at Drescher & Cheslow, our family law practice is much more than divorce. Along with divorce, we have helped hundreds of families in Central Jersey and the New Jersey area with child support, alimony, equitable distribution of property, child custody and visitation, pension distribution, analyzing the tax consequences of proposed marital settlements, mediation and arbitration of matrimonial cases, domestic violence trials and enforcement of matrimonial settlement agreements, to name but a few.

Serving Central Jersey and the New Jersey area for many years gives us the experience and expertise needed to provide the highest-quality in family law services available. As our society becomes more sophisticated each year, divorce & family law has become increasingly complex. We understand the hardships and how personal divorce law can be which is why we strive to work with you and for you every step of the way.

Drescher & Cheslow, P.A. is dedicated to client service at every step of our relationship with one another. By working to achieve our client’s goals in a professional, yet personal manner, we have been able to help them through the most trying of times with experienced guidance throughout. Divorce lawyer cases of Drescher & Cheslow are not finished until we fight for your justice. Anyone going through a divorce, marital separation or who has children with another to whom you are not married would benefit from the advice and guidance that an experienced divorce & family law, matrimonial, attorney can give.

We are accessible attorneys who are able to handle any case, from the less complex uncontested divorce to the multi-million dollar contested divorce with issues, including complicated property division, complex custody disputes and significant maintenance awards. Our team approach to every family law practice matter has obtained successful results for clients across New Jersey. Since litigants in the family courts of New Jersey generally undergo an emotional upheaval, it is the family lawyer’s job to know the law, to understand and counsel clients on the consequences of various strategies, and to advise the client when it is best to settle and more preferable to litigate in the courts or before an arbitrator. Many times one party in a divorce or family law dispute is in a more financially advantageous bargaining position than the other party. In those cases, the less advantaged client must obtain proper advice and counsel to protect that party and to level the playing field. It is always a goal to resolve family law disputes in as amicable a manner as is possible.

Divorce & family law clients of Drescher & Cheslow can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. With over 35 years of experience, Drescher & Cheslow has handled all types of divorce & family law matters. If your are looking to get help or advice in anything related to divorce or family law, please Contact or Call (732)-972-1600 today to speak to one of our skilled Divorce Lawyer & Family Law Attorneys. Conveniently serving Central Jersey and the New Jersey area.

]]>Why you should choose our Central Jersey divorce lawyer and family law attorneyshttps://drescher-cheslow.com/middlesex-county-divorce-lawyer-family-law-attorney/
Thu, 08 Jun 2017 19:25:18 +0000http://drescher-cheslow.com/?p=1064Drescher & Cheslow, P.A. is dedicated to client service at every step of our relationship with one another. By working to achieve our client’s goals in a professional, yet personal, manner, we have been able to help them through the most trying of times with experienced guidance throughout. Divorce lawyer cases of Drescher & Cheslow […]

]]>Drescher & Cheslow, P.A. is dedicated to client service at every step of our relationship with one another. By working to achieve our client’s goals in a professional, yet personal, manner, we have been able to help them through the most trying of times with experienced guidance throughout. Divorce lawyer cases of Drescher & Cheslow are not finished until we fight for your justice. These matters include; divorce, child support, alimony, equitable distribution of property, child custody and visitation, pension distribution, analyzing the tax consequences of proposed marital settlements, mediation and arbitration of matrimonial cases, domestic violence trials and enforcement of matrimonial settlement agreements, to name but a few. Anyone going through a divorce, marital separation or who has children with another to whom you are not married would benefit from the advice and guidance that an experienced divorce & family law, matrimonial, attorney can give.
Serving the New Jersey area for many years gives us the experience and expertise needed to provide the highest-quality in family law available. As our society becomes more sophisticated each year, divorce & family law has become increasingly complex. We understand the hardships and how personal divorce law can be which is why we strive to work with you and for you every step of the way.
Since litigants in the family courts of New Jersey generally undergo an emotional upheaval, it is the family lawyer’s job to know the law, to understand and counsel clients on the consequences of various strategies, and to advise the client when it is best to settle and more preferable to litigate in the courts or before an arbitrator. Many times one party in a divorce or family law dispute is in a more financially advantageous bargaining position than the other party. In those cases, the less advantaged client must obtain proper advice and counsel to protect that party and to level the playing field. It is always a goal to resolve family law disputes in as amicable a manner as is possible. We often counsel clients that family law mediation with a qualified family law attorney-mediator will be the most cost effective and fairest way to resolve a family law dispute. However, even when the parties desire to attend mediation to resolve their issues, it is always of benefit to both parties to retain separate counsel so that each can be comfortable that the mediation solutions being discussed are in the client’s best interests, as well as the best interests of their children, where children are concerned.Divorce & family law clients of Drescher & Cheslow can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. With over 35 years of experience, Drescher & Cheslow has handled all types of divorce & family law matters.
If your are looking to get help or advice in anything related to divorce or family law, please Contact or Call (732)-972-1600 today to speak to one of our skilled Divorce Lawyer & Family Law Attorneys. Conveniently serving Middlesex County and the New Jersey area.

]]>Divorce lawyer cases of Drescher & Cheslow are not finished until we fight for your justice. These matters include; divorce, child support, alimony, equitable distribution of property, child custody and visitation, pension distribution, analyzing the tax consequences of proposed marital settlements, mediation and arbitration of matrimonial cases, domestic violence trials and enforcement of matrimonial settlement agreements, to name but a few. Anyone going through a divorce, marital separation or who has children with another to whom you are not married would benefit from the advice and guidance that an experienced divorce & family law, matrimonial, attorney can give.Divorce & family law clients of Drescher & Cheslow can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. With over 35 years of experience, Drescher & Cheslow has handled all types of divorce & family law matters.

Divorce & family law has become increasingly complex. Since litigants in the family courts of New Jersey generally undergo an emotional upheaval, it is the family lawyer’s job to know the law, to understand and counsel clients on the consequences of various strategies, and to advise the client when it is best to settle and more preferable to litigate in the courts or before an arbitrator. Many times one party in a divorce or family law dispute is in a more financially advantageous bargaining position than the other party. In those cases, the less advantaged client must obtain proper advice and counsel to protect that party and to level the playing field. It is always a goal to resolve family law disputes in as amicable a manner as is possible. We often counsel clients that family law mediation with a qualified family law attorney-mediator will be the most cost effective and fairest way to resolve a family law dispute. However, even when the parties desire to attend mediation to resolve their issues, it is always of benefit to both parties to retain separate counsel so that each can be comfortable that the mediation solutions being discussed are in the client’s best interests, as well as the best interests of their children, where children are concerned.

Contact or Call (732)-972-1600 today to speak to one of our skilled Divorce Lawyer & Family Law Attorneys, serving New Jersey and the Monmouth County area.

]]>Divorce and family law in Monmouth County NJhttps://drescher-cheslow.com/divorce-family-law-monmouth-county-nj/
Mon, 08 May 2017 15:39:24 +0000http://drescher-cheslow.com/?p=1030Divorce & family law clients of Drescher & Cheslow can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. With over 35 years of experience, Drescher & Cheslow has handled all types of divorce & family law matters. These matters include; […]

]]>Divorce & family law clients of Drescher & Cheslow can be assured that they will be treated with diligence, compassion and with knowledge of the law and the consequences unique to their cases. With over 35 years of experience, Drescher & Cheslow has handled all types of divorce & family law matters. These matters include; divorce, child support, alimony, equitable distribution of property, child custody and visitation, pension distribution, analyzing the tax consequences of proposed marital settlements, mediation and arbitration of matrimonial cases, domestic violence trials and enforcement of matrimonial settlement agreements, to name but a few. Anyone going through a divorce, marital separation or who has children with another to whom you are not married would benefit from the advice and guidance that an experienced divorce & family law, matrimonial, attorney can give.

Divorce & family law has become increasingly complex. Since litigants in the family courts of New Jersey generally undergo an emotional upheaval, it is the family lawyer’s job to know the law, to understand and counsel clients on the consequences of various strategies, and to advise the client when it is best to settle and more preferable to litigate in the courts or before an arbitrator. Many times one party in a divorce or family law dispute is in a more financially advantageous bargaining position than the other party. In those cases, the less advantaged client must obtain proper advice and counsel to protect that party and to level the playing field. It is always a goal to resolve family law disputes in as amicable a manner as is possible. We often counsel clients that family law mediation with a qualified family law attorney-mediator will be the most cost effective and fairest way to resolve a family law dispute. However, even when the parties desire to attend mediation to resolve their issues, it is always of benefit to both parties to retain separate counsel so that each can be comfortable that the mediation solutions being discussed are in the client’s best interests, as well as the best interests of their children, where children are concerned.

Call (732)-972-1600 or Contact us today to speak to one of our skilled Divorce Lawyer & Family Law Attorneys, serving New Jersey and the Monmouth County area.

]]>How To Protect Yourself from Government Ban on Lawsuits and Damageshttps://drescher-cheslow.com/government-lawsuits-ban/
Wed, 08 Mar 2017 18:12:53 +0000http://drescher-cheslow.com/?p=1012Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury. […]

]]>Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury. The founders feared unaccountable power in the form of the King of England against his “subjects.” 21st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

• Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers,
to $250,000.00, regardless of how much that injury devastated your life or the extent of malfeasance by the medical professional or company.

• Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe

• Eliminate Individual States Law regarding lawsuits and forcing all cases to Federal Court

• Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. Javerbaum Wurgaft has been protecting citizens of New Jersey and New York by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

]]>Re-opening Workers Compensation Permanent Disability Awards under New Jersey Lawhttps://drescher-cheslow.com/workers-compensation/
Thu, 02 Feb 2017 19:29:12 +0000http://drescher-cheslow.com/?p=998In New Jersey, if a worker is injured in a work-related accident or incident, the injured worker can file a claim petition in the Workers Compensation Court which is a division of the NJ Department of Labor. If the worker receives an award of partial permanent disability, that award can be modified (or “re-opened) to […]

]]>In New Jersey, if a worker is injured in a work-related accident or incident, the injured worker can file a claim petition in the Workers Compensation Court which is a division of the NJ Department of Labor. If the worker receives an award of partial permanent disability, that award can be modified (or “re-opened) to obtain additional disability benefits if disability has increased, subject to certain time and proof requirements.

Here are some basic questions and answers concerning re-opening of a workers compensation permanent disability award

Question #1: What is involved in obtaining additional workers compensation benefits after I receive a permanent partial disability award?

Reopener petitions are filed by claimants seeking more medical, temporary or permanent disability benefits. You will need a copy of the court order awarding you the permanent disability benefits. You can re-open your case more than once if permanent disability increases

Question #2: How long do I have to file a reopener petition?

The claimant has two years from the last payment of disability benefits or the last date of authorized treatment, whichever is later, to reopen the award. This applies even if the permanent disability award has previously been re-opened and an additional award has been made. The first thing to do is consult your attorney to obtain additional authorized medical treatment or an evaluation as to whether you would benefit from additional medical treatment.

Question #3: What is the legal standard to prove entitlement to further permanency payments?

The claimant must show objective proof that his or her condition has materially worsened since the last award. That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Employers or their workers compensation insurance carriers often take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective. The workers employer or their insurance company will likely have a copy of the transcript created at the time of the initial settlement or last award and then compare those complaints with current complaints given by the worker. If those complaints have not changed, there may be no basis for additional compensation. However, if there is objective evidence of a deterioration of the condition or conditions that resulted in the previous award, generally the reopener claim will be considered as viable.

Question #4: How long will the re-opener process take?

The workers compensation courts are very busy, and depending on the venue of your case, once a petition is filed, it can take from six months to several years to resolve the reopener petition. If the claimant is getting authorized treatment, generally the case will not be resolved for at least six to 8 months after the treatment has concluded and the claimant is evaluated by doctors chosen by his attorney and the employer. There is always the possibility that there will be a dispute as to increased disability, or that the current problem is related to the original condition for which partial permanent disability was awarded. In those cases, either the court will hold a trial, taking testimony from the claimant, the evaluation doctors, and if applicable, from other witnesses. Sometimes, to avoid a trial, the claimant and employer will agree on a lump sum award (called a Section 20 settlement) to close out the case, and in those cases, no further workers compensation benefits will be paid in the future, including medical treatment.

Should you have any questions concerning the workers compensation process, please contact Robert E. Goldstein, Esq. of Drescher & Cheslow, P.A. (732) 972-1600.

]]>Post Election Gift Planninghttps://drescher-cheslow.com/election-results/
Wed, 09 Nov 2016 17:42:51 +0000http://drescher-cheslow.com/?p=964In light of the election results, we are making some initial forays into the possible results to bring our clients the very best estate and tax planning advice. Under Donald Trump, he would propose to eliminate estate taxes (presumably that would mean gift and generation slipping taxes also), but with a carryover basis for assets […]

]]>In light of the election results, we are making some initial forays into the possible results to bring our clients the very best estate and tax planning advice.

Under Donald Trump, he would propose to eliminate estate taxes (presumably that would mean gift and generation slipping taxes also), but with a carryover basis for assets in excess of 10 million (in other words, only a step up in cost basis on the first 10 million of inherited wealth, with the tax bite on the appreciation only to come when the appreciated assets are later sold).

It seems to me that what this appears to mean is that (absent special circumstances)anyone contemplating making a taxable gift (particularly if the estate/gift tax exemption has been used up) would be wise to refrain from doing so until we see what new laws are passed. If the Trump proposal is implemented, there would appear to be no need to make lifetime gifts if the sole purpose is to reduce the donor’s taxable estate or otherwise exclude future appreciation from the taxable estate. As New Jersey is phasing out its own estate tax (2 million exemption in 2017; eliminated by 1/1/18), the motivation to make lifetime gifts to eliminate the NJ estate tax (since lifetime gifts are not brought back into the NJ taxable estate) would also seem to be eliminated. For New York, things are a bit different, since it will still have an estate tax (although since NY’s taxable threshold is now 4.187 million, increasing to 5 million on 4/1/17 and then supposedly increasing to an amount equal to the Federal exemption- currently 5.45 million- on 1/1/19, unless NY changes its estate tax laws, fixing s set exemption amount on 1/1/19, if the Federal estate tax is eliminated, so too would be the New York estate tax, something which NY is unlikely to allow). Obviously, for residents of states such as Florida which does not have an estate tax, state estate tax issues would appear to be irrelevant.

Bottom line: again, barring special circumstances (i.e., terminal illness, a need to avoid state estate taxes, but only if the loss of a basis step up is overshadowed by state estate tax savings) it would appear to be advisable at this time to hold off making taxable gifts (particularly those which would require payment now of a Federal estate tax because the exemption has been fully utilized) until we see what the next Congress will do.

]]>Cohabitation Clause In Divorce Settlement Agreement Will Be Enforced By NJ Courtshttps://drescher-cheslow.com/cohabitation-clause-divorce-settlement/
Thu, 05 May 2016 13:04:40 +0000http://drescher-cheslow.com/?p=734Cohabitation Clause Monmouth County A precedential ruling has been handed down by the New Jersey Supreme Court on May 3, 2016 enforcing a settlement agreement between divorced spouses that provided that alimony would terminate when the recipient of the alimony payments resided with another man, also known as “cohabitation”. In a 4-2 ruling, the majority […]

A precedential ruling has been handed down by the New Jersey Supreme Court on May 3, 2016 enforcing a settlement agreement between divorced spouses that provided that alimony would terminate when the recipient of the alimony payments resided with another man, also known as “cohabitation”.

In a 4-2 ruling, the majority upheld a property settlement agreement that mandated the termination of alimony for a woman who lived with another man for a little more than two years after she divorced her husband of 23 years.

Appellate Division Judge Mary Cuff, writing the Court’s opinion in Quinn v. Quinn, said both divorcing spouses in this case voluntarily entered into the property settlement agreement and that both were represented by counsel at the time.

“Marital agreements, including PSAs that clearly and unequivocally provide for the termination of alimony upon cohabitation, are enforceable when the parties enter such agreements knowingly and voluntarily,” Cuff said.

Justice Barry Albin, joined by Justice Jaynee LaVecchia, dissented, stating that “A property settlement agreement in a divorce action should address the economic consequences of a marriage’s dissolution; it should not contain shackles that deprive a spouse of the right to seek love and companionship,” he said.

This case points out how important it is to carefully review with your attorney and to make sure you understand each and every clause in your matrimonial settlement agreement. The Court is telling parties that if they make a deal and agree to a provision which may have harsh consequences to one of the parties, it will still be enforced.

]]>Divorce and Moneyhttps://drescher-cheslow.com/divorce-and-money/
Fri, 25 Mar 2016 13:08:35 +0000http://drescher-cheslow.com/?p=696A Collaborative Divorce Can Help Protect Your Assets Making good financial decisions during divorce is critical to the outcome of a fair and just settlement. These decisions can be particularly overwhelming to a spouse who has not handled the finances in the marriage, the professional with too much going on, or for a family that […]

Making good financial decisions during divorce is critical to the outcome of a fair and just settlement. These decisions can be particularly overwhelming to a spouse who has not handled the finances in the marriage, the professional with too much going on, or for a family that has a special needs child. These decisions can also be difficult for someone overwhelmed with the emotion aspects of a divorce. In today’s times of high stress jobs, long commutes and little time to breathe, it can be difficult even for the financially savvy to ensure all assets and debts have been properly accounted. With the guidance of a neutral Collaborative Financial Professional, you can have peace of mind as you navigate through the potential minefield of financial issues in your divorce. The Collaborative Financial Professional can help you and your spouse or partner make the important financial decisions that will have a short and long term impact on your future financial security.

Overview of financial implications in divorce

The neutral Collaborative Financial Professional can help you with:

Determining how much money you need to maintain your lifestyle

Deciding what would be a proper and reasonable child support and/or alimony amount

Valuation of businesses, licenses and degrees

Income tax issues including residence sales, capital gains, AMT

Equitable distribution of assets and tax consequences

Budgets, financial planning and adequacy of resources

Retirement savings and projections

Tax ramifications for paying and/or receiving alimony

Present value for buyout and other purposes

Determination of marital and separate property components of assets

Understanding complex financial documents

Preparation of Net Worth Statements

Tips on how to make good financial decisions during divorce:

Considerations in dividing or selling the marital home:
Deciding whether to sell the home now or at some future time can be very emotional for the couple, as this decision will deeply impact the financial stability of the family. The Collaborative Financial Professional can provide you and your spouse with options regarding the affordability of keeping the house and the tax impact of transferring assets.

What to do with the debt in your marriage:
The accumulation of debt in the marriage can be challenging for clients. The Collaborative Financial Professional can provide you and your spouse with unbiased information so that you are knowledgeable of your debt picture and can determine how best to handle marital debt.

Planning for the children’s financial needs:
Consideration should be given to ensuring that your children’s financial needs are met and addressed in a plan to minimize the potential for future conflict.

Planning for retirement needs:
The retirement savings accumulated during the marriage is often one of the largest marital assets aside from the marital home. The Collaborative Financial Professional can help you and your spouse determine how much money you both will need to live on and project future retirement needs.

Planning for insurance for the parties and children after divorce:
It is important to plan for the insurance needs of the family, in case one spouse does not have insurance and the other spouse has an employer-provided health insurance plan covering the entire family. In addition, it is important to ensure that adequate life insurance is available to meet the needs of the family. Additional insurance may be needed if there are child support, spousal support and special needs requirements in the divorce agreement.

]]>The Need For Calm Reflection Before Signing Your Divorce Settlementhttps://drescher-cheslow.com/need-calm-reflection-signing-divorce-settlement/
Mon, 21 Mar 2016 14:15:30 +0000http://drescher-cheslow.com/?p=684Whether you are finalizing an agreement as a prelude to divorcing, either through the collaborative divorce process, through mediation, or through traditional divorce litigation, your attorney and you must take the time to make sure what you think you are agreeing to is clearly stated in the settlement agreement. For divorce professionals, the ending phase […]

]]>Whether you are finalizing an agreement as a prelude to divorcing, either through the collaborative divorce process, through mediation, or through traditional divorce litigation, your attorney and you must take the time to make sure what you think you are agreeing to is clearly stated in the settlement agreement.

For divorce professionals, the ending phase of negotiating requires the ability and the presence of mind to stay grounded and to make sure we are protecting our clients. That means making sure each person is actually agreeing to the terms that will help guide their future interactions when there are future obligations and rights, such as parenting and attendant time-sharing with the parties’ children, or where continuing financial obligations are contemplated, such as child support, health care expenses, alimony or other financial obligations.

Having an experienced and calm attorney or mediator such as me can help prevent unintentional or unforeseen consequences. A poorly or ambiguously worded agreement may cause trouble shortly after it is signed. Other times, an agreement seems to work for months or years, until problems occur when a triggering event happens, such as the selling of a house or choosing and paying for a child’s private or religious education or college.

Situations like these can lead the parties into future litigation? If the agreement they have been adhering to is unable to take into account future issues, it may become necessary to incur more attorney fees and reopen the negotiation. While not every issue that may occur in the future can often be anticipated, being as clear as possible in the wording of the settlement agreement does make it easier to deal with such future problems.

I know from experience that it is always worth taking a deep breath in the last stages of negotiation in order to go over the proposed agreement calmly and carefully. You should not be rushed into signing anything until you feel that you fully understand it and that it can guide your future dealings with your former spouse or significant other. Coming to an agreement, signing the agreement, enacting the agreement, and understanding the agreement are separate pieces, and they all have to work together to get you to the goal of actually being divorced.

I have over 41 years of experience in handling the negotiation of marital settlement agreements, and I also am trained as a mediator and as a collaborative divorce lawyer. Many of my clients hire me because they say I make them feel,comfortable in a very trying time in their lives. I can be reached at my Manalapan, NJ office, where I am Of Counsel to the firm of Drescher & Cheslow, P.A., 610 Bridge Plaza Drive. (732)972-1600.

This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 10.50 hours of total CLE credit. Of these, 1.20 qualify as hours of credit for ethics/professionalism, and 9.30 qualify as hours of credit toward certification in matrimonial trial law.

NJAJ Course Materials… The seminar course materials will be online for attendees to download on April 1, 2016. Each registrant will receive a flash drive containing the course material onsite.

Click here to see the program schedule and fill out the registration form for Boardwalk Seminar 2016.

]]>Can An Attorney Who Litigates Divorce Cases Also Be A Collaborative Divorce Attorney?https://drescher-cheslow.com/can-an-attorney-who-litigates-divorce-cases-also-be-a-collaborative-divorce-attorney/
Fri, 12 Feb 2016 16:05:55 +0000http://drescher-cheslow.com/?p=660Collaborative Divorce Attorney Monmouth County While there is a definite advantage to both parties going through a divorce to settle their issues amicably, which is usually through the collaborative divorce process, or through mediation, you should not think that an attorney who is formally trained to represent clients in a Collaborative Divorce is somehow “weaker” […]

While there is a definite advantage to both parties going through a divorce to settle their issues amicably, which is usually through the collaborative divorce process, or through mediation, you should not think that an attorney who is formally trained to represent clients in a Collaborative Divorce is somehow “weaker” or “less competent” than a divorce attorney who only litigates divorce cases. This is because if you are divorcing, you want an attorney who has the ability to negotiate and seek resolution of the issues in your case in a passionate yet reasoned manner. Such an approach usually has the benefit of saving you thousands of dollars in legal fees and expert witness fees. Aren’t you and your children better off with more money in your pocket and the ability to deal with your soon to be former spouse in a civil manner for the benefit of your children?

The idea that a lawyer who is trained in the collaborative divorce process is a lesser advocate is incorrect. The most successful litigators, while experienced in the court process, are also superb negotiators. To benefit their clients, they have decided to become collaboratively trained attorneys also, so that if the divorcing couple are desirous of keeping things on a civil level, the collaborative process, which they and they alone control, rather than be controlled by a judge who does not know the parties and has hundreds of cases on his or her docket at any one time, they should want to divorce collaboratively.

Are Collaborative Divorce attorneys highly skilled at litigation? Yes, almost every one of them is. So, to get the best of both worlds, you should consider a collaborative divorce when the two of you have decided to terminate your marriage. Your children will thank you.

I am a collaboratively trained attorney and I am a member of Collaborative Divorce Professionals, serving Middlesex, Monmouth & Ocean counties. To learn more, go towww.njcollaborativeprofessionals.com

]]>When Does a Court Order to Pay Child Support Terminate?https://drescher-cheslow.com/when-does-a-court-order-to-pay-child-support-terminate/
Thu, 21 Jan 2016 17:51:36 +0000http://drescher-cheslow.com/?p=653Child Support Termination Monmouth County On January 19, 2016, Governor Christie signed S-1046/A-2721 into law. This law establishes 19 as the age when a child support and/or medical support obligation will end. The new law allows for child and/or medical support to continue up to age 23 for cases in which the dependent is still […]

On January 19, 2016, Governor Christie signed S-1046/A-2721 into law. This law establishes 19 as the age when a child support and/or medical support obligation will end. The new law allows for child and/or medical support to continue up to age 23 for cases in which the dependent is still in high school; attending full-time college, vocational or graduate school; is disabled; if the parties reached a separate agreement; or, if continued support was granted by the court.

The effective date of the law is February 1, 2017 and applies to all child support orders. If you have at least one dependent, age 19 or older, as of February 1, 2017, you will receive an initial Notice of Child Support Termination on or around August 1, 2016. This Notice will be sent out 180 days before the dependent’s 19th birthday and will contain information on how to request a continuation of child support as well as how it will impact the amount of child support.

For families that currently have a child already over the age of 19, child support will end on February 1, 2017, rather than on the child’s 19th birthday, as the new law is phased in.

If your Judgment of Divorce (JOD) or support order specifies an end date other than the dependent’s 19th birthday, that date will stand and you will not be permitted to request an administrative continuation of support. However, you still may receive a Notice of Child Support Termination and be asked to send in a copy of the JOD or order.

If no continuation of child support is requested, a second Notice of Child Support Termination will be sent out 90 days before the dependent’s 19th birthday. If no continuation is requested after receiving the second notice, the order of support will end as of the child’s 19th birthday, and both parties will receive an update reflecting this change. (Note that if back child support is owed, the non-custodial parent still is responsible for paying that off.)

If you receive an updated order for continued support and wish to oppose it, you may file an application or motion with the court. If there are younger children on the order in addition to the 19-year-old (or older) child(ren), parents may need to file an application or motion with the court to adjust the child support amount.

If your JOD or support order calls for child support to continue beyond the dependent’s 19th birthday – if they are in college, for example – you will receive a Final Notice of Child Support Termination 90 days before the dependent’s 23rd birthday (or other extended termination date) informing you that the child support will end.

In order to ensure that all notices and informational updates are received, please confirm that the Child Support Program has your most current mailing address, cell phone number and email address.

More information regarding the new child support termination process will be posted on www.njchildsupport.org in the upcoming weeks and months.

]]>Grandparents Visitation Cases May Require Case Management And Discoveryhttps://drescher-cheslow.com/grandparents-visitation-cases-may-require-case-management-and-discovery/
Wed, 13 Jan 2016 21:58:38 +0000http://drescher-cheslow.com/?p=650Grandparents Visitation Rights Monmouth County In Anthony C. Major v. Julie Maguire, decided by the New Jersey Supreme Court on January 12, 2016, the issue addressed by the Court was the procedure for case management and for determining whether a grandparent, seeking an order compelling visitation under the Grandparent Visitation Statute, has made a prima […]

In Anthony C. Major v. Julie Maguire, decided by the New Jersey Supreme Court on January 12, 2016, the issue addressed by the Court was the procedure for case management and for determining whether a grandparent, seeking an order compelling visitation under the Grandparent Visitation Statute, has made a prima facie showing of harm to the child sufficient to withstand a motion to dismiss.
The Court stated that while some grandparent visitation cases may dictate assignment to a complex track requiring discovery, including interrogatories and depositions of parties and potential witnesses, others may be handled as summary actions, without discovery or case management.
In its 5-0 decision, the court affirmed an Appellate Division ruling calling for the trial court to re-examine the case using procedural guidelines set forth in a previous Appellate Division ruling from 2014, R.K. v. D.L.. That decision came after the trial judge in the Major v. McGuire case dismissed the grandparents’ petition on a finding that no prima facie case was made that the child would suffer harm in the absence of visitation with her grandparents. The trial judge had granted the defendant’s motion to dismiss the complaint by the grandparents seeking to visit with their grandchild after denying their request for a brief period of discovery and declining their request to present expert testimony as to the question of harm to the child. The Supreme Court said the trial judge should have denied the motion to dismiss and granted the plaintiffs a chance to satisfy their burden to prove harm.
The Supreme Court noted that family judges have broad discretion to tailor the proceedings but should ensure that the best interests of the child remain paramount.
The Court made it clear that “Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be on the welfare of the child.” In addition, when a plaintiff in such a case seeks to present expert testimony to meet his or her burden of proof, trial courts should be sensitive to the impact of involvement of an expert on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and the parties in suggesting a resolution of the dispute.
In this case, the Court decided that the plaintiff-grandparents had made a prima facie case that their granddaughter would be harmed if she is not allowed contact with them. The showing was made as required by Moriarty v. Bradt, a 2003 New Jersey Supreme Court ruling that Grandparent Visitation Statute is subject to strict scrutiny.
This decision recognizes the balance that must be exercised by trial judges hearing grandparents visitation cases between the rights of the grandparents to a relationship with their grandchild by requiring a threshold showing of harm to the child, by a preponderance of the evidence, by preventing the visitation, and the rights of the child’s parents to parental autonomy. It provides guidance to attorneys handling these cases as to how far they can go in terms of pursuing the litigation on behalf of the litigants embroiled in them.

]]>Suspicions of Child Abusehttps://drescher-cheslow.com/suspicions-of-child-abuse/
Tue, 05 Jan 2016 18:00:18 +0000http://drescher-cheslow.com/?p=620Dealing with Suspicions of Child Abuse by the Other Parent Divorcing parents often struggle emotionally with the reality of having less time with their children; this adjustment is particularly difficult when one parent believes that the other parent is abusing the children. Divorce is a time for making adjustments. Divorcing parents often struggle emotionally with […]

Divorcing parents often struggle emotionally with the reality of having less time with their children; this adjustment is particularly difficult when one parent believes that the other parent is abusing the children.

Divorce is a time for making adjustments. Divorcing parents often struggle emotionally with the difficulty of having less time with their children because the children are now residing out of their primary care and/or splitting their time between both parents. This adjustment is particularly cumbersome when one parent believes that the other parent is abusive or neglectful of the children.

Deciding the right course of action is critical. The stakes are high, and making the wrong choice could place your child at risk of serious physical or emotional harm. Here, we discuss the definition of child abuse in New Jersey, which will help you decide if your child may be at risk. We then provide some action steps to identify when your child may be the victim of maltreatment at the hands of their parent.

DEFINITION OF CHILD ABUSE OR NEGLECT
Most parents have an idea of what constitutes child abuse and neglect. Burning a child, leaving a young child home for a weekend alone, failing to feed or diaper a baby and committing sexual abuse on a child victim are pretty obvious examples. However, the New Jersey statute N.J.S.A. 9:6-8.21(c) includes six broad categories of conduct far in excess of what we normally consider child abuse. The most frequently cited statutory provision relied upon the Child Protective Services is N.J.S.A. 9:6-8.21(c)(4)(b), which defines an abused or neglected child as one who is harmed or placed at imminent risk of harm as his parent or guardian fails to exercise the “minimum degree of care” in providing for the child’s needs.

That very broad language was enacted to cover all forms of child maltreatment which could have been prevented had the parent or guardian performed some act or failed to engage in some conduct. To flesh out what this language means, we turn first to the New Jersey Administrative Code, which has a long list of alleged abuse or neglect categories. But, to abbreviate the discussion, one would only know that the categories of potential maltreatment include actual harm (burns, cuts, fractures, etc.), as well as potential harm (risk of mental or emotional impairment; risk of harm due to substance abuse; environment injurious to health or welfare).

Oftentimes, divorcing parents see changes in their children that they attribute to the stress of the change in familial structure. Because the emotional toll of divorce may be substantial for children, parents should be mindful not to assume the child is being harmed by the other parent simply because the child has difficulty separating from one parent at times when he is to go to the other parent, or because the child reports feelings of distress at sleeping over at the other parent’s home. These behaviors may be normal. However, a seasoned mental health professional may be required in order to determine whether a child’s change in mood, attitude or behavior is concerning for child maltreatment.

Here is a list of a few commonly addressed concerns for child abuse or neglect and what New Jersey Courts have to say about them:

1.Spanking (and other forms of corporal punishment) – Corporal punishment is legal; however, it cannot be excessive. Corporal punishment that leaves cuts, bruises, welts or requires medical care can be sufficient. If no medical care is needed, look to whether the conduct is isolated or a part of a pattern of abuse. Also, did the circumstances warrant the punishment? Division of Youth & Family Services v. K.A., 413 N.J. Super. 504 (App. Div. 2010)

2.Domestic Violence – Exposure to domestic violence is not per se child maltreatment. The child must have witnessed an act of domestic violence, and there must be causal relationships demonstrated between witnessing the incident and emotional harm to the child. Division of Youth & Family Services v. S.S., 372 N.J.Super. 13 (App.Div.2004)

3.Substance abuse/alcoholism – A parent should not exercise visitation, even supervised visitation, while impaired (this includes drugs and alcohol); however, Title 9 is not intended to extend to all parents who imbibe illegal substances at any time. Division of Youth & Family Services v. V.T., 423 N.J. Super. 320 (App Div 2011)

4.Living conditions – Substandard, dirty and inadequate sleeping conditions are unfortunate incidents of poverty; they do not establish child neglect or abuse. Failure to educate and provide intellectual stimulation was not the intended definition of educational neglect; parent contribution to truancy or interference with normal education is required. Doe v. G. D., 146 N.J.Super. 419 (App.Div.1976)

5.Sexual abuse/molestation – In order for a court to make a finding that a child has been sexually abused, either the child must testify, or his disclosure of abuse must be corroborated – i.e., there must be some direct or indirect evidence to support the child’s statement. Age-inappropriate, precocious sexual knowledge may qualify as corroboration. Division of Youth & Family Services v. Z.P.R., 351 N.J.Super. 427 (App.Div.2002)

The above list is by no means an exhaustive list of child abuse and neglect concerns. But, these are the issues that arise most often in the context of divorce. If you believe that your child may be the subject of child maltreatment, you should consult an attorney who specializes in handling child abuse and neglect matters.

]]>Collaboratively Trained Teamhttps://drescher-cheslow.com/the-value-of-the-collaboratively-trained-team/
Tue, 22 Dec 2015 18:00:26 +0000http://drescher-cheslow.com/?p=627The Value Of The Collaboratively Trained Team Monmouth County Family law attorney Anna–Maria Pittella and Dr. William Frankenstein, Ph.D., an independent, licensed psychologist, discuss the value of the collaboratively trained team within the collaborative divorce process. IN THIS EPISODE , YOU’LL LEARN: The promise of collaborative process. How collaborative process shifts the parties in their […]

Family law attorney Anna–Maria Pittella and Dr. William Frankenstein, Ph.D., an independent, licensed psychologist, discuss the value of the collaboratively trained team within the collaborative divorce process.

IN THIS EPISODE , YOU’LL LEARN:

The promise of collaborative process.

How collaborative process shifts the parties in their expectations.

The importance of the Participation Agreement.

The value of this process to parties dealing with varying levels of emotion in divorce.

How the interaction of the collaborative team effects the parties as well as the professionals.

How the role of a divorce coach helps couples learn how to more effectively communicate.

The difference between the role of the divorce coach and the attorney.

Where value is added from the traditional litigation process.

Why couples who have gone through the collaborative process are more likely to resolve future differences as well amicably and without court.

]]>Craft v Bugbeehttps://drescher-cheslow.com/a-deal-is-a-deal/
Wed, 25 Nov 2015 20:33:03 +0000http://drescher-cheslow.com/?p=609In Craft v. Bugbee a couple with two teenaged children negotiated an agreement concerning their parenting time with the children as part of their divorce.(PTA). The agreement allowed the mother to move to California with the children but it provided that New Jersey would retain jurisdiction over all custody and parenting time issues that would […]

]]>In Craft v. Bugbee a couple with two teenaged children negotiated an agreement concerning their parenting time with the children as part of their divorce.(PTA). The agreement allowed the mother to move to California with the children but it provided that New Jersey would retain jurisdiction over all custody and parenting time issues that would arise in the future. The father continued to reside in New Jersey.

In the years since they signed the agreement, the mother filed numerous motions to try to undo this specific provision of the parenting agreement, but the courts always denied her applications.

Two years ago, the mother filed another motion, again arguing that the New Jersey court should decline jurisdiction on the ground that it is an inconvenient forum jurisdiction and that jurisdiction should be moved to California as a more appropriate forum.” Her motion was denied.
This jurisdiction issue, the trial judge said, was “specifically contemplated” when the parties negotiated the agreement. The father’s consent to the mother’s relocation with his sons to the other side of the country was contingent upon the inclusion of this provision. In denying the mother’s motion, the judge used the standards established under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-71.

Again, in September 2014, the mother made the same motion (she was certainly persistent!). The same judge came stuck to his prior ruling. He expressed concern that if he disregarded the agreement they had made, this may be the beginning of a slippery slope – future divorcing litigants might “merely feign agreement at the outset, with the intention of later returning to court to challenge its validity.”

The New Jersey Appellate Division upheld the Family Part judge’s ruling. The lesson to be learned is that when you make a deal, expect the courts to enforce it, absent a showing that enforcement was not in the childrens’ best interests.

]]>Supreme Court Adopts: Unified Mental Health Service Provider Privilegehttps://drescher-cheslow.com/unified-mental-health-service-provider-privilege/
Tue, 22 Sep 2015 14:50:54 +0000http://drescher-cheslow.com/?p=577The New Jersey Supreme Court has adopted a rule that creates a “unified mental health service provider privilege,” which will reorganize the current patchwork of privileges which offer varying degrees of protection to professionals. New Jersey Rule of Evidence 534 will go into effect on July 16, 2016, according to a notice to the bar […]

]]>The New Jersey Supreme Court has adopted a rule that creates a “unified mental health service provider privilege,” which will reorganize the current patchwork of privileges which offer varying degrees of protection to professionals.

New Jersey Rule of Evidence 534 will go into effect on July 16, 2016, according to a notice to the bar issued by Chief Justice Stuart Rabner on Sept. 15.

The new rule is “intended to modify or replace the different and occasionally inconsistent privileges that currently exist for communications between patients and various mental health service providers,” the notice says.

“The privilege applies to confidential communications between a mental health service provider and a patient during the course of treatment of, or related to, the patient’s mental or emotional health,” the notice says.

The privilege will apply to psychologists, physicians and psychiatrists, marital and family therapists, social workers, alcohol and drug counselors, nurses, professional counselors, psychoanalysts, midwives, physician assistants and pharmacists.

Members of the clergy, who have their own privilege, are not included in the new rule.

The new rule is the product of a process that began in 2010, when the Supreme Court’s Privileges Subcommittee issued a report finding “little apparent justification for treating a patient’s communications with one mental health professional differently from communications with a different mental health professional.”

The panel deemed the “disparate treatment” of different types of professionals “difficult to justify” given the policy goals of encouraging utilization of mental health services and ensuring the patients’ privacy.

Those goals “would seem to apply equally to a communication with a mental health service provider, regardless of his or her professional credentials,” the panel said. It noted that lesser protections for social workers and counselors, as opposed to psychologists and psychiatrists, is likely to adversely impact lower-income patients.

The current scheme also presents challenges to the courts, who must discern one privilege from another, even in situations where a patient has received treatment from multiple providers, such as in a hospital, the panel said.

]]>Gnall v. Gnallhttps://drescher-cheslow.com/gnall-v-gnall/
Tue, 04 Aug 2015 15:14:41 +0000http://drescher-cheslow.com/?p=559In Gnall v Gnall, decided on July 28, 2015, the NJ Supreme Court decided that a trial judge must analyze all of the statutory factors when deciding what type of alimony (unlimited durational; limited duration; rehabilitative; or reimbursement alimony) and for how long alimony should be paid to a dependent spouse. The decision instructs trial […]

]]>In Gnall v Gnall, decided on July 28, 2015, the NJ Supreme Court decided that a trial judge must analyze all of the statutory factors when deciding what type of alimony (unlimited durational; limited duration; rehabilitative; or reimbursement alimony) and for how long alimony should be paid to a dependent spouse. The decision instructs trial judges very clearly on their obligations in this regard. Before this decision, there was always a debate as to whether a marriage of a certain length would justify what most attorneys and judges then called permanent alimony, and the length of the marriage often was deemed a factor that overrode the other factors in the alimony statute.

However, with the revision to the alimony statute that went into effect in September, 2014, a judge must also determine in what cases a marriage of less than twenty years might justify unlimited durational alimony if it is requested, because the revised statute has a presumptive limit on the term of alimony to no more than the amount of years that the parties were married. So, for example, if the parties are married for 15 years, there is a presumption that the court should not award alimony to the dependent spouse of more than 15 years, although the court can award alimony for less than 15 years. But this presumption can be rebutted, and the court will be required to analyze all of the factors in the statute in order to make a decision on the length as well as the amount of alimony.

]]>Are You Considering A Divorce?https://drescher-cheslow.com/are-you-considering-a-divorce/
Fri, 12 Jun 2015 17:45:32 +0000http://drescher-cheslow.com/?p=548Obtaining a Divorce in New Jersey Most actions for Divorce are started by filing a Complaint for Divorce in the Family Part of your County Courthouse. In a Collaborative Divorce, rather than rush into litigation and be subjected to multiple mandatory court appearances, the parties meet and sign a participation agreement. The parties then attend […]

]]>Obtaining a Divorce in New Jersey
Most actions for Divorce are started by filing a Complaint for Divorce in the Family Part of your County Courthouse. In a Collaborative Divorce, rather than rush into litigation and be subjected to multiple mandatory court appearances, the parties meet and sign a participation agreement. The parties then attend sessions with their attorneys present to reach a settlement agreement on all issues including but not limited to: alimony, child support, custody, and division of assets. Once the settlement is reached and signed, the Divorce Complaint is filed by one party or the Plaintiff. Ultimately, the Plaintiff or both parties (Plaintiff and Defendant) will appear in Court to obtain a Final Judgment of Divorce, which is a formal document dissolving the marriage. The written settlement agreement along with the Judgment of Divorce make up your divorce documents which need to be retained by you forever. Whether you chose the path of Collaborative Divorce or litigation, the same statues, laws, and case precedent applies as relates to alimony, child support, child custody, parenting time/visitation, and division of assets also known as equitable distribution.

Mandatory Court Appearances – Litigation vs. Collaborative Divorce
Litigation is the term used by attorneys to describe a divorce that is proceeding through the typical court process. After a Complaint for Divorce is filed, the first appearance by your attorney is at the Court for a Case Management Conference at which time the attorneys will advise the Court what issues arise as part of your divorce. These issues typically include: alimony, child support, custody, payment of counsel fees. life insurance, and division of assets also known as equitable distribution. Depending on the county within which your divorce is taking place, you may need to appear in Court for the Case Management Conference. This typically means having to take a day off from work and ensuring childcare for your children. If you are going through a Collaborative Divorce, neither your attorney nor you have to go to this appearance, which can save a significant amount of money in legal fees. In addition, if you have children you will need to attend the Parents Education Program, this is a 4-5 hour program which takes place at the Courthouse. N.J.S.A. 2A:34-12, mandates that parents must attend a Parents’ Education Program in all divorce cases in which custody, parenting time, or child support is raised as an issue in the complaint or answer/counterclaim. The workshop is designed to inform families about their children’s needs as they move thought the difficult transitions of separation and divorce and to introduce parents to the mediation process as an alternative to traditional litigation for resolving parenting matters. Program speakers include a Family Mediator and two licensed clinical social workers. In a Collaborative Divorce you do not need to attend this program, again saving you time off from work and the need for childcare. You and your spouse are scheduled for the program on different days.

The next mandatory appearance for you and your attorney is the Early Settlement Panel (ESP), wherein you will receive a brief lecture from the Judge advising you of the need to consider the settlement options as recommended by the panel of attorneys you will meet that day. This is considered a “long” day in court, most attorneys advise their client’s to take the entire day off from work. You and your attorney will prepare an Early Settlement Panel Statement which will be produced to the panel of attorneys. The panel of attorneys is typically made up of two attorneys who are experienced matrimonial attorneys that volunteer their time to the Court to help resolve matrimonial cases. If your case does not settle that day, you will be scheduled for Mandatory Economic Mediation which will take place at an attorney’s office that is a Court Appointed Mediator. If you are unable to settle your case at that point, your case will progress to trial, which will require many more mandatory all day appearances, including in some cases attending Intensive Settlement Conferences at the Courthouse and Pre-Trial Conferences. Your legal fees will increase significantly with each mandatory court appearance. A Collaborative Divorce typically requires only one appearance in Court and that is for your actual Divorce, therefore from that perspective alone a Collaborative Divorce can be significantly less costly than a Divorce which involves litigation.

The Law that Applies to Divorce Issues
The New Jersey Legislature has passed statutes, and the Courts have made decisions, called precedents, that supplement the laws passed by the Legislature, together the statutes and cases provides a comprehensive body of law that covers hundreds of issues arising in a divorce. As comprehensive as the law may be in this area, issues in divorce are very fact specific and often there is no simple answer. There are Child Support Guidelines that have been promulgated that presumptively apply for families who make less than $187,200.00 net (after taxes) per year. There are no guidelines for alimony, but there are general statutory factors that are to be considered by the Court, see N.J.S.A. 2A:34-23(b) for the specific factors. For property distribution, New Jersey is an Equitable Distribution State. This means that there is no automatic exclusion or equal division of assets and liabilities acquired during the marriage, but rather there are a number of factors the Court is to consider to arrive at a fair division, see N.J.S.A. 2A: 34-23.1 for the specific factors .

]]>MAN DENIED PERMIT TO OWN GUNS BASED ON ALLEGED DOMESTIC INCIDENTShttps://drescher-cheslow.com/man-denied-permit-to-own-guns-based-on-alleged-domestic-incidents/
Fri, 24 Apr 2015 15:13:40 +0000http://drescher-cheslow.com/?p=532On April 22, 2015, the Appellate Division of the Superior Court of New Jersey, in a precedential opinion, upheld the denial of the application for the issuance of three handgun permits and a firearms purchaser identification card to an Aberdeen man who had been involved in a number of domestic disputes with his wife but […]

On April 22, 2015, the Appellate Division of the Superior Court of New Jersey, in a precedential opinion, upheld the denial of the application for the issuance of three handgun permits and a firearms purchaser identification card to an Aberdeen man who had been involved in a number of domestic disputes with his wife but who had never been convicted of a domestic violence offense nor had a final restraining order issued against him.

The Gun Control Law, NJSA 2C:58-3(c) recognizes that the right to possess firearms is presumed, except for certain good cause. It states that:No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. However, section (c) 5 of the law provides that handgun permits shall not be issued “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare[.]” N.J.S.A. 2C:58-3(c)(5)

Besides a domestic violence complaint in 1998, the police were called to the man’s home for domestic disputes involving his wife occurring between 2003 and 2011. The trial judge did not believe the man’s downplaying of these domestic incidents, and the appellate court agreed. Thus, it was concluded that he was unfit to be issued a permit to own handguns. The case is In Re Appeal of the Denial of the Application of Z.L. and is found here: http://www.judiciary.state.nj.us/opinions/a5848-12.pdf

]]>Hazlet Police Will Participate In Wills For Heroes Programhttps://drescher-cheslow.com/hazlet-police-will-participate-in-wills-for-heroes-program/
Thu, 16 Apr 2015 16:14:12 +0000http://drescher-cheslow.com/?p=527On May 2, 2015, the Hazlet Police Department will be participating in an event called “Wills for Heroes,” which will be held at the Cullen Center in Hazlet. The Wills for Heroes website states that their programs provide essential legal documents free of charge to our nation’s first responders, including wills, living wills, and powers […]

]]>On May 2, 2015, the Hazlet Police Department will be participating in an event called “Wills for Heroes,” which will be held at the Cullen Center in Hazlet. The Wills for Heroes website states that their programs provide essential legal documents free of charge to our nation’s first responders, including wills, living wills, and powers of attorney. The 501(c)(3) charitable non-profit Wills for Heroes Foundation supports these Wills programs, giving back to the community and “protecting those who protect us.”
This program was discovered by Hazlet Detective Division Commander Lt. Ted Wittke, Kr. while seeking information on a will for himself and his wife. He explained, I also realized after talking with coworkers that many of them either have no will in place or haven’t even considered getting one. I thought Wills for Heroes would be a great way to be able to offer a will to all of my coworkers at no charge to them. I think a will is something that some people have a hard time coming to grips with but getting one prepared and donated to you for your public service is something you should take advantage of. If not for you then for your family.”
As Lt. Wittke took the steps to coordinate this event, he met Mr. Joshua Cheslow, who is an attorney in Manalapan. He is a member of the Executive Board of the New Jersey State Bar Association Young Lawyers Division (YLD). The YLD, through its associations with the American Bar Association, sponsors attorney participation in the New Jersey chapter of the program. “I am responsible for organization, outreach, and implementation of the program,” said Mr. Cheslow. he has been the coordinator of the Wills for Heroes program since May, 2013. Organizing the event includes preparing the laptops and site preparation, creating a webpage for promotion to the first responders, and obtaining attorney volunteers. Prior to the event date, first responders must fill out an estate planning questionnaire which is used as a financial organizational tool and a screening tool. First responders can also contact Mr. Cheslow, as there are specific guidelines, which determine eligibility.
“We encourage first responders who are married to attend with their spouse or partner, as they are also entitled to a free estate plan and generally estate planning for married couples is done together,” said Mr. Cheslow. He noted that a Wills for Heroes estate plan encompasses a Last Will and Testament, a Durable Power of Attorney, and a Living Will/Advanced Directive for Health Care. This is the typical “simple” estate plan in the state of New Jersey, and in most states in the United States. On the day of the event, the first responder is assigned an attorney team of at least two attorneys. The draft estate planning documents are reviewed with the first responder participant to insure that each person understands and agrees to what they are executing. Once finalized, the documents are signed, witnessed and notarized in a formal signing ceremony. On average, it takes about an hour to complete the estate planning documents. The Wills for Heroes program does not keep a copy of the participant’s documents or information.
“I got involved to give back something important to the community of first responder – death is at their very doorstep on a regular basis, so that it makes sense they should have their wishes set forth in writing in the event of a tragedy. As a lawyer who practices in this area, what better way to give back than a program like this,” said Mr. Cheslow. He added that the YTD is proud to have a record of strong volunteer turnout. Due to volunteers, they can handle approximately 50 individuals (25 couples) during the course of a six-hour day. “The event is not all business. This is a chance for the community to come together, and we often have young children at the events.”
Lt. Wittke shared, “I think it’s amazing that Mr. Cheslow and other attorneys are willing to participate and provide this service pro bono, and it’s a great testament to them. At the May 2 event, Mr. Cheslow and his fellow attorneys will be set up all day to take appointments from Hazlet Police Officers.”
Anyone interested in further information on eligibility or other event dates, can contact Mr. Joshua Cheslow at 732.972.1600. More details about this program can be found at http://www.willsforheroes.org.

]]>Daughter Who Was Adopted Declared Emancipated After She Moves In With Biological Fatherhttps://drescher-cheslow.com/daughter-who-was-adopted-declared-emancipated-after-she-moves-in-with-biological-father/
Wed, 15 Apr 2015 17:23:26 +0000http://drescher-cheslow.com/?p=523In a published decision issued by the Appellate Division of the New Jersey Superior Court on April 13, 2015, the court agreed with a trial court judge that a 20 year woman who had left her mother’s home and began living with her biological father was legally emancipated because she was beyond the sphere of […]

]]>In a published decision issued by the Appellate Division of the New Jersey Superior Court on April 13, 2015, the court agreed with a trial court judge that a 20 year woman who had left her mother’s home and began living with her biological father was legally emancipated because she was beyond the sphere of influence of both of her parents. The young woman had been adopted by James Shewchuk when she was about 2 years old after he married her mother. The young woman sought a continuation of child support from her adoptive father and mother, contending that she was pursuing her education and that her biological parents were supporting her in addition to her working a part time job while attending a community college.
The case is LLEWELYN V. SHEWCHUK.

]]>Grandparents Visitation Rights – Allowed Visitation Over Objection of Parenthttps://drescher-cheslow.com/grandparents-allowed-visitation-over-objection-of-parent/
Mon, 13 Apr 2015 16:32:51 +0000http://drescher-cheslow.com/?p=521Grandparents Visitation Rights Monmouth County, NJ On April 10, 2015, the New Jersey Appellate Division decided, in the case of M.K. and L.K. v. A.K., that the paternal grandparents of two children, whose father had died suddenly, should be entitled to visitation with the grandchildren over the objection of the childrens’ mother. The Court found […]

On April 10, 2015, the New Jersey Appellate Division decided, in the case of M.K. and L.K. v. A.K., that the paternal grandparents of two children, whose father had died suddenly, should be entitled to visitation with the grandchildren over the objection of the childrens’ mother. The Court found that the parent of the childrens’ decision was entitled to deference but was not controlling, and that the grandparents had proved by clear and convincing evidence that the grandchildren would be harmed if they were deprived of a relationship with the paternal grandparents.

Under the New Jersey Grandparents’ visitation statute, the grandparents must prove by a preponderance of the evidence that visitation is necessary to avoid harm to the child. The grandparents’
evidence can be expert or factual. The termination of a long-standing relationship between the grandparents and the child, with expert testimony assessing the effect of those circumstances, could form the basis for a finding of harm.

Call (732)-972-1600 today to speak to one of our skilled Divorce and Family Law Attorneys. Located in Manalapan (Monmouth County, NJ), Cranford (Union County, NJ) and Midtown Manhattan (New York, NY); Drescher & Cheslow represents clients throughout the State of New Jersey & New York including but not limited to Mercer, Middlesex, Monmouth, Essex, Somerset, Morris, Hudson and Ocean counties.

Grandparents Visitation Rights Monmouth County, NJ

]]>Post Divorce Disputes Monmouth County, NJhttps://drescher-cheslow.com/appellate-court-bars-mediation-of-post-divorce-disputes/
Wed, 08 Apr 2015 16:13:54 +0000http://drescher-cheslow.com/?p=519APPELLATE COURT BARS MEDIATION OF POST-DIVORCE DISPUTES AFTER ENTRY OF A FINAL RESTRAINING ORDER Post Divorce Disputes Monmouth County, NJ On April 1, 2015, the Superior Court of NJ, Appellate Division ruled in the case of O.P. v. L.G-P. that a judge may not order a divorced couple to mediate post-divorce disputes when a final […]

]]>APPELLATE COURT BARS MEDIATION OF POST-DIVORCE DISPUTES AFTER ENTRY OF A FINAL RESTRAINING ORDER

Post Divorce Disputes Monmouth County, NJ

On April 1, 2015, the Superior Court of NJ, Appellate Division ruled in the case of O.P. v. L.G-P. that a judge may not order a divorced couple to mediate post-divorce disputes when a final restraining order (FRO) had been entered barring contact between the parties sometime after the parties were divorced, even though the parties’ settlement agreement, made part of their final judgment of divorce, mandated mediation for disputed financial or parenting issues.

The court pointed out that there is a strong policy to avoid domestic violence which trumps the agreement of the parties, even if they are represented by counsel at the post-divorce mediation.

Call (732)-972-1600 today to speak to one of our skilled Divorce and Family Law Attorneys. Located in Manalapan (Monmouth County, NJ), Cranford (Union County, NJ) and Midtown Manhattan (New York, NY); Drescher & Cheslow represents clients throughout the State of New Jersey & New York including but not limited to Mercer, Middlesex, Monmouth, Essex, Somerset, Morris, Hudson and Ocean counties.

Post Divorce Disputes Monmouth County, NJ

]]>Who can take the dependency exemptions in a divorce?https://drescher-cheslow.com/dependency-exemptions/
Tue, 17 Mar 2015 20:18:19 +0000http://drescher-cheslow.com/?p=511This is income tax filing season. For divorced and separated parents, the question of who can take the dependency exemptions often arises. According to IRS rules, only one taxpayer may claim a dependency exemption for a child for a tax year. The general rule is that a child is the qualifying child of the “custodial” […]

]]>This is income tax filing season. For divorced and separated parents, the question of who can take the dependency exemptions often arises. According to IRS rules, only one taxpayer may claim a dependency exemption for a child for a tax year.

The general rule is that a child is the qualifying child of the “custodial” parent, who in New Jersey is now referred to as the parent of primary residence (“PPR”). In other words, the parent who cares for the child and has the child over 50% of the time is entitled to claim a child as a dependent on his or her tax return as a matter of right. However, many parents today have equal shared parenting time. So the issue of who takes the child as an exemption clearly needs to be agreed upon by the parents. This should be the subject of negotiations between divorced parents, and between separated parents who will not be filing joint income tax returns. Often, as long as the parent of alternate residence (“PAR”) is paying child support, the exemption is split between children, or if there is only one child, alternated year to year.

There are situations in which one parent is in a tax bracket ( high or low) that the exemption may not make a significant difference. In that case, the parent who gets a significant savings may want to have the exemption.

In the event the custodial parent does allow the other parent to claim a child, two conditions must be met:

The PPR parent signs IRS Form 8832, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a substantially similar statement, and

the noncustodial parent attaches the Form 8332 or the statement to his or her return.
I can assist you, along with your accountant, in negotiating the best and fairest way to deal with this issue.

]]>Access to Medical Treatment Records in the NJ Workers Compensation Caseshttps://drescher-cheslow.com/access-medical-treatment-records-nj-workers-compensation-cases/
Thu, 26 Feb 2015 11:23:12 +0000http://drescher-cheslow.com/?p=507Workers Compensation Monmouth County Do claimants in workers’ compensation cases have a right to request their treating medical records from the insurance carrier, third party administrator, or the authorized treating physician to whom they are assigned for treatment?. The answer to this question comes from both the New Jersey Workers’ Compensation Act and from the […]

Do claimants in workers’ compensation cases have a right to request their treating medical records from the insurance carrier, third party administrator, or the authorized treating physician to whom they are assigned for treatment?. The answer to this question comes from both the New Jersey Workers’ Compensation Act and from the rules of the New Jersey Medical Society.

N.J.S.A. 34:15-128.4 provides that it is unlawful for an employer, the carrier or the treating physician, or a third party in the case or their agents “to withhold from the individual any medical information they have regarding that individual which is requested by the individual, and if an individual requests the medical information, the individual shall not be charged fees in excess of the cost of providing copies of the information.” In other words, a claimant has a right to medical information from any party to a workers’ compensation case. That includes the treating medical provider.

Authorized workers’ compensation physicians owe the same obligation to a treating claimant as they would to a private patient. The mere fact that the employer has designated the treating doctor and pays for the care in no way changes the doctor-patient relationship in a workers’ compensation case.

The rules of the New Jersey Medical Society are similar. Under N.J.A.C. 13:35-6.5, the treating medical provider must provide patient records no later than 30 days from the receipt of a request from the patient or an authorized representative. The records must include objective data such as test results and x-ray results. The rules go on to say that when a patient has requested the release of medical records to a specified individual or entity, the physician shall secure a written medical authorization to protect the privacy interests of the patient.

The Board of Medical Examiners also provides that the cost of reproducing such records shall not be greater than $1.00 per page or $100 for the entire records, whichever is less. If the records are less than 10 pages, the medical provider may charge $10 to cover postage and associated costs related to the retrieval of such records. Medical providers shall not charge for a copy of the patient’s records when the physician has effectively terminated a patient from practice in accordance with the requirements of N.J.A.C. 13:35-6.22.

It is important to understand the difference between a treating physician and a medical examiner retained by the workers compensation carrier or employer to provide an evaluation of the claimant. Because there is no physician-patient relationship in a situation involving such a medical examination, a physician who is performing the examination does not have to provide a copy of such a report to the person being examined. That report is sent to the party which requested it, usually the insurance carrier, third party administrator or counsel.

The rule regarding disclosure of treating medical records between counsel is contained in N.J.A.C. 12:235-3.8 (c), which states that either party must furnish medical information to the other within 30 days of the receipt of a demand for such records. Usually the employer or its insurance carrier/third party administrator has the treating records, and in that case those records must be made available to petitioner’s counsel or petitioner on request. If the claimant has obtained treatment on his or her own, then the same obligation rests on claimant to provide such records to the employer on request. If a party is not responding timely to a request for medical information in a litigated case, the appropriate step is to file a motion in the Division of Workers’ Compensation.

Workers Compensation Monmouth County

]]>Robert E. Goldstein, Esq. To Receive Prestigious Schoifet Award From The Middlesex County Bar Associationhttps://drescher-cheslow.com/receive-schoifet-award-middlesex-county-bar-association/
Wed, 12 Nov 2014 20:15:13 +0000http://drescher-cheslow.com/?p=474I am pleased to announce that I will be receiving the prestigious Schoifet Award from the Middlesex county bar Association on January 21, 2015. The Schoifet Award, the highest honor presented by the Family Law Section, commemorates the legacy of Edward Schoifet who passed away in 2006. Ed was considered the dean of the Middlesex […]

]]>I am pleased to announce that I will be receiving the prestigious Schoifet Award from the Middlesex county bar Association on January 21, 2015.

The Schoifet Award, the highest honor presented by the Family Law Section, commemorates the legacy of Edward Schoifet who passed away in 2006. Ed was considered the dean of the Middlesex County Family Bar and was recognized as a role model for all family law practitioners.

The Award is presented annually to a Family Law Practitioner who has been engaged in the practice for 15 years or more and who exemplifies those principles by which Ed practiced family law: maintaining knowledge of past and present case law to advise clients thoroughly; analyzing the facts of each case in detail and diligently applying the law to those facts; presenting the issues and applicable law to the client in a manner appropriate to the client’s understanding; making purposeful efforts to settle the issues in fair and reasonable terms before resorting to litigation; fostering respect and courtesy for the bench and fellow attorneys; maintaining highest standards of integrity and professionalism; and exhibiting leadership in the Middlesex County or State Bar Association.

I also received the Pavlovsky Award in 2011 for his years of service to the Middlesex County Bar Association and in recognition of his promotion of collegiality and professionalism to his colleagues and the 2014 Professionalism Award from Middlesex County presented by the New Jersey Commission on Professionalism in the Law.

]]>Trusts and Trustees Monmouth County, NJhttps://drescher-cheslow.com/trusts-trustees/
Thu, 06 Nov 2014 17:34:39 +0000http://drescher-cheslow.com/?p=469Trusts and Trustees Monmouth County What is a Trust? Trusts come in nearly endless forms, including those which are made effective while a person is living, or inter vivos, and those which are to be established after death, or post mortem. Some trusts are revocable, meaning that they may be changed or entirely eliminated by […]

What is a Trust? Trusts come in nearly endless forms, including those which are made effective while a person is living, or inter vivos, and those which are to be established after death, or post mortem. Some trusts are revocable, meaning that they may be changed or entirely eliminated by their creator, while others are irrevocable, such that they may not be altered or cancelled. Trusts may be stand-alone documents or may be testamentary, that is, included within a person’s Will. Trusts may also be creatures of courts, established by judicial order. A trust may provide certain mandates, such as requiring investments be made or retained and that specified payouts or distributions be made, or may be discretionary in one or more facets, including but not limited to choice of investments and distributions.

Trusts are legal arrangements to carry out specific or general directions and that allow one person or entity to manage assets for the benefit of others. A trust must have a creator, or Settlor, sometimes called a Grantor, a Trustor or a Donor. A trust must also have a trustee, or someone or some thing to hold legal title to property. A trust will not fail for want of a trustee. In the absence of a trustee or vacancy in such position, a trustee or a successor trustee will be appointed, whether by a designation in the trust instrument, by consensus of the beneficiaries, or by a third party (a judge, a trust protector or perhaps some other party). A trust must have property, which can be real estate or personal property, tangible or intangible. Trust property will include principal, or corpus, which is comprised of the assets coming into the trust, whether at the outset or at a later time while the trust is being administered, as well as accretion to the value of such assets and changes in their identity. Trust property will also include income earned upon trust principal, typically represented by interest, dividends and rents and in certain situations fees received by the trustee resulting from the use of such assets by others.

A trust must also have beneficiaries, or distributees, which can be persons or entities entitled to receive income, principal or both, including the right to receive such amounts over fixed or measurable periods of time, such as for a stated term of years or over the lifetime of the recipient, and the right to receive the assets remaining in the trust upon termination. Beneficiaries or distributees may be classified as current or income beneficiaries on the one hand and future or remainder beneficiaries on the other.

The role of the Trustee. The duties of a trustee vary with the purposes for which a given trust is established and with the directions and discretions, if any, provided within the trust itself. The trustee typically, though by no means at all times, manages trust assets and distributes them in accordance with the directions of the Settlor. The trustee must bear in mind, however, the overriding concern for protecting and preserving trust assets, even absent instructions from the Settlor, if the failure to act would be detrimental to the Settlor’s intent and purpose.

Management of a trust is a significant responsibility. In order to fulfill this obligation, the trustee should, as a general rule, possess good common sense and financial or business acumen or, short of that, an understanding of the need to retain competent financial and legal advisors to provide the requisite expertise. Trustees, in carrying out their duties, are governed by the provisions contained in the trust documents and by fundamental legal principles. These usually require that the trustee act reasonably, prudently and in good faith. A trustee, in exercising trust powers and authorities, must do so rationally and equitably, considering the needs of both income and principal, current and remainder beneficiaries, in a manner in which a person of ordinary prudence, diligence, discretion and judgment would act. Perfection is not required but care and reason are. By way of example, trustees are not permitted to speculate with trust property, but in the investment of trust assets are required to follow sound diversification principles (i.e. not to put all investment eggs into a single asset basket). Protection of income and principal as a reasonably prudent person would do is what is required.

Trustees may not personally benefit from trust assets or investments. They owe a duty of loyalty both to the Settlor, or creator of the trust, and to the beneficiaries and must avoid any situation which could include conflict of interest – for example, lending themselves trust funds, buying assets from trusts, especially, but not necessarily exclusively, for less than fair market value, or otherwise “doing business” with the trust they are charged with administering. At a minimum, any transaction in which the trustee might have a personal interest must be fully and transparently disclosed to the beneficiaries.

Trustees have a duty of impartiality; that is, absent an express direction form the Settlor, they cannot favor one class or group of beneficiaries over another, for example, income beneficiaries over principal beneficiaries or vice versa. Trustees must act fairly and equitably in making decisions about investments, distributions and payment of expenses, as well as about any other matters involving discretion. As a practical matter, a trustee should consider the needs and interests of all distributees when acting upon directives in trust documents and when investing and distributing trust assets. It should be noted that the obligation to be impartial includes the responsibility to credit receipts and to charge disbursements to income or to principal in an equitable manner both for allocation of such receipts and disbursements among the beneficiaries and for purposes of income tax reporting (more below) in order to avoid unfairly burdening or favoring one group of beneficiaries to the benefit or detriment of another.

A trustee should keep the beneficiaries informed about the status of the trust and its assets and liabilities. To accomplish this sharing of information a trustee should periodically provide the distributees with information that is pertinent to their interests, which may include formal or informal accountings.

A trustee is authorized and indeed encouraged to seek advice from competent and experienced professionals including financial advisors, certified financial planners, attorneys and accountants in the areas of trust administration and asset investment. Each year while a trust is in existence and to the extent required by law (generally, based upon the amount of gross income earned by a trust during a given calendar year) a trustee will be obligated to arrange for the preparation and filing of state and Federal income tax returns to reflect trust income, expense and distribution. As a part of this responsibility, a trustee will provide each distributee with scheduled to reflect the portion of trust income and deduction that may be attributable to such recipient.

At various intervals and upon termination of a trust, a trustee will be required to provide the beneficiaries with an accounting, whether informal (usually) or in a formal court proceeding (seldom) of the administration of the trust during the measuring period. Upon approval of the accounting and receipt from the beneficiaries of signed releases from liability, trust assets, less any appropriate reserve for final tax return filing and final expenses, are to be distributed to the beneficiaries.

Compensation of trustees. Under New Jersey law, trustees are entitled, although not required, to receive compensation in the form of commissions on both income and principal. This compensation is in addition to reimbursement for ordinary and necessary expenses incurred in trust administration. Annually, a trustee is entitled to receive a commission equivalent to 6% of trust income at to a fractional percentage of trust principal (.005 of the first $400,000 of assets and .003 of assets in excess of $400,000). Where there are multiple trustees there is a fractional adjustment to the principal commission. In addition to the annual commission, upon termination of a trust a trustee is entitled to a fee, which is determined with reference to the size of the trust and the years of trust administration, in part to reflect prior annual commission payments.

Summary. While the position of a trustee is to be taken seriously, it can be handled properly with prudence, reason and common sense, including knowing what one does not know or lacks expertise in, so that counsel and advice from competent professionals can be obtained and relied upon.

]]>The New Jersey Family Collaborative Law Act Monmouth County, NJhttps://drescher-cheslow.com/new-jersey-family-collaborative-law-act/
Fri, 24 Oct 2014 14:53:04 +0000http://drescher-cheslow.com/?p=431Collaborative Law Act Monmouth County, NJ On September 10, 2014 Governor Christie signed into law the New Jersey Family Collaborative Law Act. Collaborative law (also called collaborative practice, divorce, or family law) is a legal process enabling you and your spouse or partner the support, protection, and guidance of your own lawyers in order to […]

On September 10, 2014 Governor Christie signed into law the New Jersey Family Collaborative Law Act. Collaborative law (also called collaborative practice, divorce, or family law) is a legal process enabling you and your spouse or partner the support, protection, and guidance of your own lawyers in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. This law takes effect in New Jersey December 9, 2014, ninety days after it was signed into law.
With a collaborative approach, each party selects an attorney of their own choosing and commits to working outside of the court system to develop a settlement. Because the clients agree not to go to court, the process itself can be more open and less adversarial. The lawyers are used in a much more focused way in their capacity as problem solvers and knowledgeable divorce professionals. The goal is to enhance communication throughout the process and lay the groundwork for a healthier post-divorce relationship between the parties.
Unlike a litigated divorce, a collaborative divorce gives the parties control of when, where, how often and how long they need to meet for each negotiation session. In addition, the collaborative divorce professionals are always looking for a way to advance both parties interests in a mutually beneficial way. The win-lose mentality of litigating in Court is dispensed with, in favor of a collaborative team working with each other, not against each other, to craft a mutually beneficial solution. Often, the first step of the process is to create a framework for effective communication that enables the building of a fair settlement framework and the trust needed for both parties to commit to that settlement.
The new law has the salutary effect of providing confidentiality to the collaborative process and for all those that participate in it, so that there is a privilege from disclosure of collaborative law communications made during the collaborative process. This enables the clients, their attorneys, and all other non-party participant, such as a neutral expert that participate in a collaborative case, to participate in a candid and open fashion in order to facilitate the resolution of a family law dispute.
For more information concerning the family law collaboration process, please contact any of our professional team members at Collaborative Divorce Professionals of New Jersey. Our team professionals can be found at NJCollaborativeProfessionals.com.

]]>The New Alimony Reform Law Monmouth County, NJhttps://drescher-cheslow.com/new-alimony-reform-law/
Thu, 02 Oct 2014 20:56:57 +0000http://drescher-cheslow.com/?p=405Alimony Reform Law Monmouth County, NJ Governor Christie has signed into law two very important pieces of legislation concerning divorce and family law. The first is an amendment to N.J.S.A. 34-23 concerning alimony awards in actions brought for divorce, dissolution of a civil union couple, divorce from bed and board (NJ’s version of a legal separation), or […]

Governor Christie has signed into law two very important pieces of legislation concerning divorce and family law. The first is an amendment to N.J.S.A. 34-23 concerning alimony awards in actions brought for divorce, dissolution of a civil union couple, divorce from bed and board (NJ’s version of a legal separation), or legal separation of civil union couple, or for annulment. The term permanent alimony has now been replaced by the term “open durational alimony”. There are many significant provisions in this new law, which is effective immediately, including a provision that for any marriage or civil union of less than 20 years in duration, the total duration of alimony a court may award shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.

The new alimony reform law also deals with issues of terminating alimony at retirement, with a rebuttable presumption that alimony should terminate at age 67 of the paying spouse. It also deals with the issue of changed circumstances because of unemployment and change of careers.

Anyone paying or receiving alimony, or who is contemplating a separation or divorce where alimony may be an issue, should consult with his or her attorney to determine how this new law affects your situation. At Drescher & Cheslow, P.A., Robert E. Goldstein, Esq. has represented clients for over 39 years in divorce and family law cases.

The other exciting development is the New Jersey Collaborative Family Law Act, which will go into effect 90 days from September 11, 2014. Collaborative divorce is much different than the traditional way that spouses divorce, and involves a team of trained professionals who assist the couple in avoiding the emotional turmoil and extensive cost of traditional litigation. For the right people, it is a much more family friendly and less costly alternative, with the goal of reaching amicable resolution of the financial and child-related issues for the divorcing couple.

Robert E. Goldstein, Esq. is a member of the collaborative divorce law practice group of Collaborative Divorce Professionals, serving clients in Monmouth, Middlesex and Ocean Counties. For more information, please go to http://www.njcollaborativeprofessionals.com/